Fisheries Act -- CHAPTER F-14
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Fisheries Act
CHAPTER F-14
An Act respecting fisheries
SHORT TITLE
Short title
1. This Act may be cited as the Fisheries Act.
R.S., c. F-14, s. 1.
INTERPRETATION
Definitions
2. In this Act,
"Canadian fisheries waters" «eaux de pêche canadiennes»
"Canadian fisheries waters" means all waters in the fishing zones of Canada, all
waters in the territorial sea of Canada and all internal waters of Canada;
"close time" «période d'interdiction» et «période de fermeture» ou «saison de
fermeture»
"close time" means a specified period during which fish to which it applies may
not be fished, and "closed time" or "closed season" has a similar meaning;
"fish" «poissons»
"fish" includes
(a) parts of fish,
(b) shellfish, crustaceans, marine animals and any parts of shellfish,
crustaceans or marine animals, and
(c) the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish,
crustaceans and marine animals;
"fishery" «pêcherie»
"fishery" includes the area, locality, place or station in or on which a pound,
seine, net, weir or other fishing appliance is used, set, placed or located, and
the area, tract or stretch of water in or from which fish may be taken by the
said pound, seine, net, weir or other fishing appliance, and also the pound,
seine, net, weir, or other fishing appliance used in connection therewith;
"fishery guardian" «garde-pêche»
"fishery guardian" means a person who is designated as a fishery guardian
pursuant to subsection 5(1);
"fishery officer" «agent des pêches»
"fishery officer" means a person who is designated as a fishery officer pursuant
to subsection 5(1);
"fishing" «pêche»
"fishing" means fishing for, catching or attempting to catch fish by any method;
"fishing vessel" «bateau de pêche»
"fishing vessel" means any vessel used, outfitted or designed for the purpose of
catching, processing or transporting fish;
"inspector" «inspecteur»
"inspector" means a person who is designated as an inspector pursuant to
subsection 38(1);
"lawful excuse" [Repealed, 1991, c. 1, s. 1]
"Minister" «ministre»
"Minister" means the Minister of Fisheries and Oceans 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;
"obstruction" «obstacle»
"obstruction" means any slide, dam or other obstruction impeding the free
passage of fish;
"vehicle" «véhicule»
"vehicle" means any conveyance that may be used for transportation, including
aircraft.
R.S., 1985, c. F-14, s. 2; R.S., 1985, c. 35 (1st Supp.), ss. 1, 5; 1991, c. 1,
s. 1.
PURPOSES
2.1 [Repealed, R.S., 1985, c. 35 (1st Supp.), s. 6]
APPLICATION
Provincial rights not affected
3. (1) Nothing in this Act shall be taken to authorize the granting of fishery
leases that confer an exclusive right to fish in property belonging to a
province.
Application of Act to Her Majesty
(2) This Act is binding on Her Majesty in right of Canada or a province.
R.S., c. F-14, s. 3; R.S., c. 17(1st Supp.), s. 9.
Licences to take spawn
4. Nothing in this Act precludes the granting by the Minister of written
permission to obtain fish for purposes of stocking or artificial breeding or for
scientific purposes.
R.S., c. F-14, s. 4.
FISHERY OFFICERS AND FISHERY GUARDIANS
Designation
5. (1) The Minister may designate any persons or classes of persons as fishery
officers or fishery guardians for the purposes of this Act and may limit in any
manner the Minister considers appropriate the powers that a fishery officer or
fishery guardian may exercise under this Act or any other Act of Parliament.
Certificate of designation
(2) Each fishery officer and fishery guardian shall be provided with a
certificate in a form the Minister considers appropriate certifying their
designation as such and, where the powers of a fishery officer or fishery
guardian are limited pursuant to subsection (1), specifying the powers that the
officer or guardian may exercise under this Act or any other Act of Parliament.
Presentation of certificate
(3) On entering any place under this Act or any other Act of Parliament, a
fishery officer or fishery guardian shall, on request, show the certificate of
designation to the person in charge of the place.
R.S., 1985, c. F-14, s. 5; 1991, c. 1, s. 2.
6. [Repealed, 1991, c. 1, s. 2]
FISHERY LEASES AND LICENCES
Fishery leases and licences
7. (1) Subject to subsection (2), the Minister may, in his absolute discretion,
wherever the exclusive right of fishing does not already exist by law, issue or
authorize to be issued leases and licences for fisheries or fishing, wherever
situated or carried on.
Idem
(2) Except as otherwise provided in this Act, leases or licences for any term
exceeding nine years shall be issued only under the authority of the Governor in
Council.
R.S., c. F-14, s. 7.
Fees
8. Except where licence fees are prescribed in this Act, the Governor in Council
may prescribe the fees that are to be charged for fishery or fishing licences.
R.S., c. F-14, s. 8.
Minister may cancel licence
9. The Minister may suspend or cancel any lease or licence issued under the
authority of this Act, if
(a) the Minister has ascertained that the operations under the lease or licence
were not conducted in conformity with its provisions; and
(b) no proceedings under this Act have been commenced with respect to the
operations under the lease or licence.
R.S., 1985, c. F-14, s. 9; R.S., 1985, c. 31 (1st Supp.), s. 95.
10. to 16. [Repealed, 1991, c. 1, s. 3]
LOBSTER FISHERIES
17. [Repealed, 1991, c. 1, s. 4]
Licences for lobster pounds
18. (1) No one shall maintain a pound or enclosure in which lobsters, legally
caught during the open season, are retained for sale during the close season at
a place where the pound or enclosure is located, or for export therefrom, except
under a licence from the Minister, and no lobsters shall be taken from any such
pound or enclosure and disposed of during the close season at the place where it
is located, except under a certificate from a fishery officer or fishery
guardian, setting out the pound or enclosure from which the lobsters were taken
and that they had been legally caught during the open season.
Marking of pounds
(2) Each pound or enclosure referred to in subsection (1) shall be marked with
the name of the licensee and the number of his licence, and the marking shall be
in black on a white ground, with letters and figures that are at least six
inches in height.
Fee
(3) The annual fee for a licence referred to in subsection (1) shall be
seventy-five dollars.
R.S., c. F-14, s. 18.
19. [Repealed, 1991, c. 1, s. 5]
CONSTRUCTION OF FISH-WAYS
Fish-ways to be made as Minister directs
20. (1) Every obstruction across or in any stream where the Minister determines
it to be necessary for the public interest that a fish-pass should exist shall
be provided by the owner or occupier with a durable and efficient fish-way or
canal around the obstruction, which shall be maintained in a good and effective
condition by the owner or occupier, in such place and of such form and capacity
as will in the opinion of the Minister satisfactorily permit the free passage of
fish through it.
Idem
(2) Where it is determined by the Minister in any case that the provision of an
efficient fish-way or canal around the obstruction is not feasible, or that the
spawning areas above the obstruction are destroyed, the Minister may require the
owner or occupier of the obstruction to pay to him from time to time such sum or
sums of money as he may require to construct, operate and maintain such complete
fish hatchery establishment as will in his opinion meet the requirements for
maintaining the annual return of migratory fish.
Place, form, etc.
(3) The place, form and capacity of the fish-way or canal to be provided
pursuant to subsection (1) must be approved by the Minister before construction
thereof is begun and, immediately after the fish-way is completed and in
operation, the owner or occupier of any obstruction shall make such changes and
adjustments at his own cost as will in the opinion of the Minister be necessary
for its efficient operation under actual working conditions.
To be kept open
(4) The owner or occupier of every fish-way or canal shall keep it open and
unobstructed and shall keep it supplied with such sufficient quantity of water
as the Minister considers necessary to enable the fish frequenting the waters in
which the fish-way or canal is placed to pass through it during such times as
are specified by any fishery officer, and, where leaks in a dam cause a fish-way
therein to be inefficient, the Minister may require the owner or occupier of the
dam to prevent the leaks therein.
R.S., c. F-14, s. 20.
Minister may authorize payment of one-half of expense
21. (1) The Minister may authorize the payment of one-half of the expense
incurred by an owner or occupier in constructing and maintaining any fish-way or
canal and, after a fish-way or canal that has been duly approved by the Minister
has been built at the cost of the owner or occupier of any obstruction, or after
the owner or occupier has paid one-half the cost thereof and the fish-way or
canal thereafter proves to be ineffective, the total cost of any change in the
fish-way or canal or any new fish-way or canal required to enable the fish to
pass by the obstruction shall, except as provided in subsection 20(3), be paid
by Her Majesty.
May construct and recover the cost in certain cases
(2) The Minister, in order to procure the construction of any fish-way or canal,
pending proceedings against any owner or occupier for the punishment imposed by
this Act, may make and complete the construction forthwith, and may authorize
any person to enter on the premises with the necessary workmen, means and
materials for that purpose and may recover from the owner or occupier the whole
expense so incurred by action in the name of Her Majesty.
May remove or destroy after notice
(3) Where an unused obstruction or a thing detrimental to fish exists and the
owner or occupier thereof does not after notice given by the Minister remove it,
or if the owner is not resident in Canada, or his exact place of residence is
unknown to the Minister, the Minister may, without being liable to damages, or
in any way to indemnify the owner or occupier, cause the obstruction or thing
detrimental to fish to be removed or destroyed and, where notice has been given
to the owner or occupier, may recover from the owner or occupier the expense of
the removal or destruction.
Minister may require fish stops or diverters
(4) The Minister may require the owner or occupier of any obstruction to install
and maintain such fish stops or diverters, both above and below the obstruction,
as will in his opinion be adequate to prevent the destruction of fish or to
assist in providing for their ascent.
R.S., c. F-14, s. 20.
Water for the descent of fish
22. (1) At every obstruction, where the Minister determines it to be necessary,
the owner or occupier thereof shall, when required by the Minister, provide a
sufficient flow of water over the spill-way or crest, with connecting sluices
into the river below, to permit the safe and unimpeded descent of fish.
Protection during construction
(2) The owner or occupier of any obstruction shall make such provision as the
Minister determines to be necessary for the free passage of both ascending and
descending migratory fish during the period of construction thereof.
Sufficient water for river bed below dam
(3) The owner or occupier of any obstruction shall permit the escape into the
river-bed below the obstruction of such quantity of water, at all times, as
will, in the opinion of the Minister, be sufficient for the safety of fish and
for the flooding of the spawning grounds to such depth as will, in the opinion
of the Minister, be necessary for the safety of the ova deposited thereon.
R.S., c. F-14, s. 20.
GENERAL PROHIBITIONS
Fishing in limits leased to another prohibited
23. No one shall fish for, take, catch or kill fish in any water, along any
beach or within any fishery described in any lease or licence, or place, use,
draw or set therein any fishing gear or apparatus, except by permission of the
occupant under the lease or licence for the time being, or shall disturb or
injure any such fishery.
R.S., c. F-14, s. 21.
Seines, nets, etc., not to obstruct navigation
24. Seines, nets or other fishing apparatus shall not be set or used in such
manner or in such place as to obstruct 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.
R.S., c. F-14, s. 22.
Setting gear during close time
25. (1) Subject to the regulations, no person shall place or set any fishing
gear or apparatus in any water, along any beach or within any fishery during a
close time.
Removal of gear
(2) Subject to the regulations and subsection (3), any person who places or sets
any fishing gear or apparatus in any water, along any beach or within any
fishery shall remove it when the gear or apparatus is not being tended and prior
to the commencement of a close time.
Officer's discretion
(3) A fishery officer may permit fishing gear or apparatus to remain in the
water, along a beach or within a fishery after the commencement of a close time
for any period the fishery officer considers necessary to permit the removal of
the gear or apparatus.
R.S., 1985, c. F-14, s. 25; 1991, c. 1, s. 6.
Main channel not to be obstructed
26. (1) One-third of the width of any river or stream and not less than
two-thirds of the width of the main channel at low tide in every tidal stream
shall be always left open, and no kind of net or other fishing apparatus, logs
or any material of any kind shall be used or placed therein.
(2) [Repealed, 1991, c. 1, s. 7]
Devices to prevent escape of fish
(3) The Minister may authorize the placing and maintaining of barriers, screens
or other obstructions in streams to prevent the escape of fish held for fish
breeding purposes or any other purpose that the Minister deems in the public
interest, and no person shall injure any such barrier, screen or other
obstruction.
R.S., 1985, c. F-14, s. 26; 1991, c. 1, s. 7.
Fish-ways and canals
27. No one shall
(a) damage or obstruct any fish-way or canal built, constructed or used to
enable fish to pass over or around any obstruction;
(b) do anything to stop, impede or hinder fish from entering or passing the
fish-way or canal or to stop, impede or hinder fish from surmounting any
obstacle or leap; or
(c) fish in any manner within twenty-five yards downstream from the lower
entrance to any fish-way, canal, obstacle or leap.
R.S., c. F-14, s. 25.
Use of explosives prohibited
28. No one shall hunt or kill fish or marine animals of any kind, other than
porpoises, whales, walruses, sea-lions and hair seals, by means of rockets,
explosive materials, explosive projectiles or shells.
R.S., c. F-14, s. 26.
Nets, weirs, etc., not to obstruct passage of fish
29. (1) No one shall erect, use or maintain in any of the Canadian fisheries
waters, whether subject to any exclusive right of fishery or not, any net, weir
or other device that unduly obstructs the passage of fish.
Removal
(2) The Minister or a fishery officer may order the removal of or remove any
net, weir or other device that, in the opinion of the Minister or fishery
officer, unduly obstructs the passage of fish.
R.S., c. F-14, s. 27.
Fish guards only where Minister deems necessary
30. (1) Every water intake, ditch, channel or canal in Canada constructed or
adapted for conducting water from any Canadian fisheries waters for irrigating,
manufacturing, power generation, domestic or other purposes shall, if the
Minister deems it necessary in the public interest, be provided at its entrance
or intake with a fish guard or a screen, covering or netting so fixed as to
prevent the passage of fish from any Canadian fisheries waters into the water
intake, ditch, channel or canal.
Structure of fish guards
(2) The fish guard, screen, covering or netting referred to in subsection (1)
shall
(a) have meshes or holes of such dimensions as the Minister may prescribe; and
(b) be built and maintained by the owner or occupier of the water intake, ditch,
channel or canal referred to in subsection (1), subject to the approval of the
Minister or of such officer as the Minister may appoint to examine it.
Duty of owner to keep in repair
(3) The owner or occupier of the water intake, ditch, channel or canal referred
to in subsection (1) shall maintain the fish guard, screen, covering or netting
referred to in that subsection in a good and efficient state of repair and shall
not permit its removal except for renewal or repair.
Removal
(4) During the time in which a renewal or repair referred to in subsection (1)
is being effected, the sluice or gate at the intake or entrance of the water
intake, ditch, channel or canal shall be closed in order to prevent the passage
of fish into the water intake, ditch, channel or canal.
R.S., c. F-14, s. 28; 1976-77, c. 35, s. 4.
Permit required
31. (1) No one shall catch, fish for, take, buy, sell, possess or export any
fish for the purposes of converting it into fish meal, manure, guano or
fertilizer, or for the manufacture or conversion of the fish into oil, fish meal
or manure or other fertilizing product, except under authority of the Minister.
Exception by Minister
(2) The Minister may, by notice published in the Canada Gazette, except any kind
or kinds of fish from the operation of all or any part of subsection (1).
R.S., c. F-14, s. 29.
Destruction of fish
32. No person shall destroy fish by any means other than fishing except as
authorized by the Minister or under regulations made by the Governor in Council
under this Act.
R.S., c. F-14, s. 30; 1976-77, c. 35, s. 5.
Unlawful sale or possession
33. No person shall purchase, sell or possess any fish that has been caught in
contravention of this Act or the regulations.
R.S., 1985, c. F-14, s. 33; 1991, c. 1, s. 8.
FISH HABITAT PROTECTION AND POLLUTION PREVENTION
Definitions
34. (1) For the purposes of sections 35 to 43,
"deleterious substance" «substance nocive»
"deleterious substance" means
(a) any substance that, if added to any water, would degrade or alter or form
part of a process of degradation or alteration of the quality of that water so
that it is rendered or is likely to be rendered deleterious to fish or fish
habitat or to the use by man of fish that frequent that water, or
(b) any water that contains a substance in such quantity or concentration, or
that has been so treated, processed or changed, by heat or other means, from a
natural state that it would, if added to any other water, degrade or alter or
form part of a process of degradation or alteration of the quality of that water
so that it is rendered or is likely to be rendered deleterious to fish or fish
habitat or to the use by man of fish that frequent that water,
and without limiting the generality of the foregoing includes
(c) any substance or class of substances prescribed pursuant to paragraph
(2)(a),
(d) any water that contains any substance or class of substances in a quantity
or concentration that is equal to or in excess of a quantity or concentration
prescribed in respect of that substance or class of substances pursuant to
paragraph (2)(b), and
(e) any water that has been subjected to a treatment, process or change
prescribed pursuant to paragraph (2)(c);
"deposit" «immersion» ou «rejet»
"deposit" means any discharging, spraying, releasing, spilling, leaking,
seeping, pouring, emitting, emptying, throwing, dumping or placing;
"fish habitat" «habitat du poisson»
"fish habitat" means spawning grounds and nursery, rearing, food supply and
migration areas on which fish depend directly or indirectly in order to carry
out their life processes;
"water frequented by fish" «eaux où vivent des poissons»
"water frequented by fish" means Canadian fisheries waters.
Regulations for purpose of definition "deleterious substance"
(2) The Governor in Council may make regulations prescribing
(a) substances and classes of substances,
(b) quantities or concentrations of substances and classes of substances in
water, and
(c) treatments, processes and changes of water
for the purpose of paragraphs (c) to (e) of the definition "deleterious
substance" in subsection (1).
R.S., c. F-14, s. 31; R.S., c. 17(1st Supp.), ss. 2, 3; 1976-77, c. 35, ss. 5,
7.
Harmful alteration, etc., of fish habitat
35. (1) No person shall carry on any work or undertaking that results in the
harmful alteration, disruption or destruction of fish habitat.
Alteration, etc., authorized
(2) No person contravenes subsection (1) by causing the alteration, disruption
or destruction of fish habitat by any means or under any conditions authorized
by the Minister or under regulations made by the Governor in Council under this
Act.
R.S., c. F-14, s. 31; R.S., c. 17(1st Supp.), s. 2; 1976-77, c. 35, s. 5.
Throwing overboard of certain substances prohibited
36. (1) No one shall
(a) throw overboard ballast, coal ashes, stones or other prejudicial or
deleterious substances in any river, harbour or roadstead, or in any water where
fishing is carried on;
(b) leave or deposit or cause to be thrown, left or deposited, on the shore,
beach or bank of any water or on the beach between high and low water mark,
remains or offal of fish or of marine animals; or
(c) leave decayed or decaying fish in any net or other fishing apparatus.
Disposal of remains, etc.
(2) Remains or offal described in subsection (1) may be buried ashore, above
high water mark.
Deposit of deleterious substance prohibited
(3) Subject to subsection (4), no person shall deposit or permit the deposit of
a deleterious substance of any type in water frequented by fish or in any place
under any conditions where the deleterious substance or any other deleterious
substance that results from the deposit of the deleterious substance may enter
any such water.
Deposits authorized by regulation
(4) No person contravenes subsection (3) by depositing or permitting the deposit
in any water or place of
(a) waste or pollutant of a type, in a quantity and under conditions authorized
by regulations applicable to that water or place made by the Governor in Council
under any Act other than this Act; or
(b) a deleterious substance of a class, in a quantity or concentration and under
conditions authorized by or pursuant to regulations applicable to that water or
place or to any work or undertaking or class thereof, made by the Governor in
Council under subsection (5).
Regulations for authorizing certain deposits
(5) The Governor in Council may make regulations for the purpose of paragraph
(4)(b) prescribing
(a) the deleterious substances or classes thereof authorized to be deposited
notwithstanding subsection (3);
(b) the waters or places or classes thereof where any deleterious substances or
classes thereof referred to in paragraph (a) are authorized to be deposited;
(c) the works or undertakings or classes thereof in the course or conduct of
which any deleterious substances or classes thereof referred to in paragraph (a)
are authorized to be deposited;
(d) the quantities or concentrations of any deleterious substances or classes
thereof referred to in paragraph (a) that are authorized to be deposited;
(e) the conditions or circumstances under which and the requirements subject to
which any deleterious substances or classes thereof referred to in paragraph (a)
or any quantities or concentrations of those deleterious substances or classes
thereof are authorized to be deposited in any waters or places or classes
thereof referred to in paragraph (b) or in the course or conduct of any works or
undertakings or classes thereof referred to in paragraph (c); and
(f) the persons who may authorize the deposit of any deleterious substances or
classes thereof in the absence of any other authority, and the conditions or
circumstances under which and requirements subject to which those persons may
grant the authorization.
Directions by the Minister
(6) A person authorized to deposit a deleterious substance by or under
regulations made pursuant to subsection (5) shall, when directed in writing by
the Minister, notwithstanding any regulations made pursuant to paragraph (5)(e)
or any conditions set out in an authorization made pursuant to paragraph (5)(f),
conduct such sampling, analyses, tests, measurements or monitoring, install or
operate such equipment or comply with such procedures, and report such
information, as may be required by the Minister in order to determine whether
the person is depositing the deleterious substance in the manner authorized.
R.S., c. F-14, s. 33; R.S., c. 17(1st Supp.), s. 3; 1976-77, c. 35, s. 7; 1984,
c. 40, s. 29.
Minister may require plans and specifications
37. (1) Where a person carries on or proposes to carry on any work or
undertaking that results or is likely to result in the 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 the
Minister with such plans, specifications, studies, procedures, schedules,
analyses, samples or other information relating to the work or undertaking and
with such analyses, samples, evaluations, studies or other information relating
to the water, place or fish habitat that is or is likely to be affected by the
work or undertaking as will enable the Minister to determine
(a) whether the work or undertaking results or is likely to result in any
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 the effects thereof; or
(b) whether there is or is likely to be a deposit of a deleterious substance by
reason of the work or undertaking that constitutes or would constitute an
offence under subsection 40(2) and what measures, if any, would prevent that
deposit or mitigate the effects thereof.
Powers of Minister
(2) If, after reviewing any material or information provided under subsection
(1) and affording the persons who provided it a reasonable opportunity to make
representations, the Minister or a person designated by the Minister is of the
opinion that an offence under subsection 40(1) or (2) is being or is likely to
be committed, the Minister or a person designated by the Minister may, by order,
subject to regulations made pursuant to paragraph (3)(b), or, if there are no
such regulations in force, with the approval of the Governor in Council,
(a) require such modifications or additions to the work or undertaking or such
modifications to any plans, specifications, procedures or schedules relating
thereto as the Minister or a person designated by the Minister considers
necessary in the circumstances, or
(b) restrict the operation of the work or undertaking,
and, with the approval of the Governor in Council in any case, direct the
closing of the work or undertaking for such period as the Minister or a person
designated by the Minister considers necessary in the circumstances.
Regulations
(3) The Governor in Council may make regulations
(a) prescribing the manner and circumstances in which any information or
material shall be provided to the Minister without request under subsection (1);
and
(b) prescribing the manner and circumstances in which the Minister or a person
designated by the Minister may make orders under subsection (2) and the terms of
the orders.
Consultation with provinces
(4) Where the Minister or a person designated by the Minister proposes to make
an order pursuant to subsection (2), he shall offer to consult with the
governments of any provinces that he considers to be interested in the proposed
order and with any departments or agencies of the Government of Canada that he
considers appropriate.
Exception
(5) Nothing in subsection (4) prevents the Minister or a person designated by
the Minister from making an interim order pursuant to subsection (2) without the
offer of consultation referred to in subsection (4) where he considers that
immediate action is necessary.
R.S., c. 17(1st Supp.), s. 3; 1976-77, c. 35, s. 8.
Inspectors and analysts
38. (1) For the purposes of this section, the Minister may designate as an
inspector or analyst any person who, in the opinion of the Minister, is
qualified to be so designated.
Certificate to be produced
(2) The Minister shall furnish every inspector with a certificate of his
designation and on entering any place, premises, vehicle or vessel referred to
in subsection (3) an inspector shall, if so required, produce the certificate to
the person in charge thereof.
Powers of inspector
(3) An inspector may, at any reasonable time, enter any place, premises, vehicle
or vessel, other than a private dwelling-place or any part of any place,
premises, vehicle or vessel used as a permanent or temporary private
dwelling-place, where the inspector believes on reasonable grounds that any work
or undertaking resulting or likely to result in the deposit of a deleterious
substance in water frequented by fish or in any place under any conditions
referred to in subsection 37(1) is being, has been or is likely to be carried
on, and the inspector may, for any purpose related to the enforcement of this
section, conduct inspections, including examining any substance or product found
therein, taking samples thereof and conducting tests and measurements.
Search
(3.1) An inspector with a warrant issued under subsection (3.2) may at any
reasonable time enter any place, premises, vehicle or vessel, other than a
private dwelling-place or any part of any place, premises, vehicle or vessel
used as a permanent or temporary private dwelling-place, where the inspector
believes on reasonable grounds that an offence under subsection 40(2) is being
or has been committed and search that place, premises, vehicle or vessel for
evidence of the offence.
Authority to issue warrant
(3.2) Where on ex parte application a justice of the peace is satisfied by
information on oath that there are reasonable grounds to believe that there is
in any place, premises, vehicle or vessel referred to in subsection (3.1)
(a) anything on or in respect of which an offence under subsection 40(2) is
being or has been committed, or
(b) anything that there are reasonable grounds to believe will afford evidence
with respect to the commission of an offence under subsection 40(2),
the justice of the peace may issue a warrant under his hand authorizing the
inspector named therein to enter and search the place, premises, vehicle or
vessel for any such thing subject to such conditions as may be specified in the
warrant.
Use of force
(3.3) In executing a warrant issued under subsection (3.2), the inspector named
therein shall not use force unless the inspector is accompanied by a peace
officer and the use of force has been specifically authorized in the warrant.
Where warrant not necessary
(3.4) An inspector may exercise the powers of entry and search referred to in
subsection (3.1) without a warrant issued under subsection (3.2) if the
conditions for obtaining the warrant exist but by reason of exigent
circumstances it would not be practical to obtain the warrant.
Exigent circumstances
(3.5) For the purposes of subsection (3.4), exigent circumstances include
circumstances in which the delay necessary to obtain a warrant would result in
danger to human life or safety or the loss or destruction of evidence.
Duty to report
(4) Where, out of the normal course of events, there occurs a deposit of a
deleterious substance in water frequented by fish or a serious and imminent
danger thereof by reason of any condition, and where any damage or danger to
fish habitat or fish or the use by man of fish results or may reasonably be
expected to result therefrom, any person who at any material time
(a) owns the deleterious substance or has the charge, management or control
thereof, or
(b) causes or contributes to the causation of the deposit or danger thereof,
shall, in accordance with any regulations applicable thereto, report such
occurrence to an inspector or such other person or authority as is prescribed by
the regulations.
Duty to take all reasonable measures
(5) Every person referred to in paragraph (4)(a) or (b) shall, as soon as
possible in the circumstances, take all reasonable measures consistent with
safety and with the conservation of fish and fish habitat to prevent any
occurrence referred to in subsection (4) or to counteract, mitigate or remedy
any adverse effects that result or may reasonably be expected to result
therefrom.
Power to take or direct remedial measures
(6) Where an inspector, whether or not a report has been made under subsection
(4), is satisfied on reasonable grounds that there is an occurrence referred to
in subsection (4) and that immediate action is necessary in order to carry out
any reasonable measures referred to in subsection (5), he may, subject to
subsection (7) and the regulations, take any such measures or direct that they
be taken by any person referred to in paragraph (4)(a) or (b).
Inconsistent orders
(7) Any requirement or direction of an inspector under this section that is
inconsistent with any requirement or order of a pollution prevention officer
under the Canada Shipping Act is void to the extent of the inconsistency.
Access to property
(8) For the purposes of subsections (4) to (6), any inspector or other person
may enter and have access through any place, premises, vehicle or vessel and may
take all reasonable action in order to comply with those subsections or any of
them, but nothing in this subsection relieves any person from liability at law
for his illegal or negligent acts or omissions or for loss or damage caused to
others by such entry, access or action.
Regulations
(9) The Governor in Council may make regulations prescribing
(a) the person or authority to whom or which a report is to be made under
subsection (4), the manner in which the report is to be made, the information to
be contained therein and the circumstances in which no report is required to be
made;
(b) the manner in which inspectors may take any measures or give any directions
under subsection (6) and the conditions to which such measures or directions are
subject;
(c) the manner and circumstances in which any measures taken or directions given
under subsection (6) may be reviewed, rescinded or varied; and
(d) any other matters necessary for or incidental to carrying out the purposes
and provisions of this section.
Assistance to inspectors
(10) The owner or person in charge of any place, premises, vehicle or vessel
entered by an inspector pursuant to subsection (3) and every person found
therein shall give the inspector all reasonable assistance to enable the
inspector to carry out his duties and functions under this section and shall
furnish the inspector with such information with respect to the administration
of this section as he may reasonably require.
Certificate of analyst as proof
(11) Subject to subsections (12) and (13), a certificate purporting to be signed
by an analyst stating that he has analyzed or tested a substance or product and
stating the result of his analysis or test is admissible in evidence in any
prosecution for an offence under subsection 40(2) or (3) without proof of the
signature or official character of the person appearing to have signed the
certificate and, in the absence of any evidence to the contrary, is proof of the
statements contained in the certificate.
Attendance of analyst
(12) The party against whom there is produced any certificate pursuant to
subsection (11) may, with leave of the court, require the attendance of the
analyst for the purposes of cross-examination.
Notice
(13) No certificate shall be admitted in evidence pursuant to subsection (11)
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 in question.
R.S., 1985, c. F-14, s. 38; R.S., 1985, c. 31 (1st Supp.), s. 34.
39. [Repealed, 1991, c. 1, s. 9]
Offence and punishment
40. (1) Every person who contravenes subsection 35(1) is guilty of
(a) an offence punishable on summary conviction and liable, for a first offence,
to a fine not exceeding three hundred thousand dollars and, for any subsequent
offence, to a fine not exceeding three hundred thousand dollars or to
imprisonment for a term not exceeding six months, or to both; or
(b) an indictable offence and liable, for a first offence, to a fine not
exceeding one million dollars and, for any subsequent offence, to a fine not
exceeding one million dollars or to imprisonment for a term not exceeding three
years, or to both.
Idem
(2) Every person who contravenes subsection 36(1) or (3) is guilty of
(a) an offence punishable on summary conviction and liable, for a first offence,
to a fine not exceeding three hundred thousand dollars and, for any subsequent
offence, to a fine not exceeding three hundred thousand dollars or to
imprisonment for a term not exceeding six months, or to both; or
(b) an indictable offence and liable, for a first offence, to a fine not
exceeding one million dollars and, for any subsequent offence, to a fine not
exceeding one million dollars or to imprisonment for a term not exceeding three
years, or to both.
Other offences
(3) Every person who
(a) fails to provide the Minister with any material or information requested
pursuant to subsection 37(1) within a reasonable time after the request is made,
(b) fails to provide or submit any material, information or report that is to be
provided or submitted under regulations made pursuant to subsection 37(3),
(c) fails to make a report that he is required to make under subsection 38(4),
(d) carries on any work or undertaking described in subsection 37(1)
(i) otherwise than in accordance with any material or information relating to
the work or undertaking that he provides to the Minister under subsection 37(1),
(ii) otherwise than in accordance with any such material or information as
required to be modified by any order of the Minister under paragraph 37(2)(a),
or
(iii) contrary to any order made by the Minister under subsection 37(2),
(e) fails to take any reasonable measures that he is required to take under
subsection 38(5) or fails to take such measures in the required manner, or
(f) fails to comply with the whole or any part of a direction of an inspector
under subsection 38(6),
(g) [Repealed, 1991, c. 1, s. 10]
is guilty of an offence punishable on summary conviction and liable, for a first
offence, to a fine not exceeding two hundred thousand dollars and, for any
subsequent offence, to a fine not exceeding two hundred thousand dollars or to
imprisonment for a term not exceeding six months, or to both.
(4) [Repealed, 1991, c. 1, s. 10]
Matters of proof
(5) For the purpose of any proceedings for an offence under subsection (2) or
(3),
(a) a "deposit" as defined in subsection 34(1) takes place whether or not any
act or omission resulting in the deposit is intentional; and
(b) no water is "water frequented by fish", as defined in subsection 34(1),
where proof is made that at all times material to the proceedings the water is
not, has not been and is not likely to be frequented in fact by fish.
R.S., 1985, c. F-14, s. 40; 1991, c. 1, s. 10.
41. (1) to (3) [Repealed, 1991, c. 1, s. 11]
Action to enjoin not prejudiced by prosecution
(4) Notwithstanding that a prosecution has been instituted in respect of an
offence under section 40, the Attorney General of Canada may commence and
maintain proceedings to enjoin anything punishable as an offence under that
section.
R.S., 1985, c. F-14, s. 41; 1991, c. 1, s. 11.
Civil liability to Her Majesty
42. (1) Where there occurs a deposit of a deleterious substance in water
frequented by fish that is not authorized under section 36 or a serious and
imminent danger thereof by reason of any condition, the persons who at any
material time
(a) own the deleterious substance or have the charge, management or control
thereof, or
(b) are persons other than those described in paragraph (a) who cause or
contribute to the causation of the deposit or danger thereof,
are, subject to subsection (4) in the case of the persons referred to in
paragraph (a) and to the extent determined according to their respective degrees
of fault or negligence in the case of the persons referred to in paragraph (b),
jointly and severally liable for all costs and expenses incurred by Her Majesty
in right of Canada or a province, to the extent that those costs and expenses
can be established to have been reasonably incurred in the circumstances, of and
incidental to the taking of any measures to prevent any such deposit or
condition or to counteract, mitigate or remedy any adverse effects that result
or may reasonably be expected to result therefrom.
Recovery
(2) All the costs and expenses referred to in subsection (1) are recoverable by
Her Majesty in right of Canada or a province with costs in proceedings brought
or taken therefor in the name of Her Majesty in any such right in any court of
competent jurisdiction.
Liability to fishermen
(3) Where, as a result of a deposit that is not authorized under section 36, a
deleterious substance enters water frequented by fish, the persons described in
paragraphs (1)(a) and (b) are, subject to subsection (4) in the case of the
persons described in paragraph (1)(a) and to the extent determined according to
their respective degrees of fault or negligence in the case of the persons
described in paragraph (1)(b), jointly and severally liable for all loss of
income incurred by any licensed commercial fisherman, to the extent that the
loss can be established to have been incurred as a result of the deposit or of a
prohibition to fish resulting therefrom, and all such loss is recoverable with
costs in proceedings brought or taken therefor in any court of competent
jurisdiction.
Defences to liability
(4) The liability of any person described in paragraph (1)(a) is absolute and
does not depend on proof of fault or negligence but no such person is liable for
any costs and expenses pursuant to subsection (1) or loss of income pursuant to
subsection (3) if he establishes that the occurrence giving rise to the
liability was wholly caused by
(a) an act of war, hostilities, civil war, insurrection or a natural phenomenon
of an exceptional, inevitable and irresistible character; or
(b) an act or omission with intent to cause damage by a person other than a
person for whose wrongful act or omission he is by law responsible.
Exception
(5) Nothing in this section limits or restricts any right of recourse that any
person who is liable pursuant to this section may have against any other person.
Limitation
(6) No proceedings may be commenced under subsections (1) to (3) at any time
later than two years after the occurrence to which the proceedings relate could
reasonably be expected to have become known to Her Majesty in right of Canada or
a province or to any licensed commercial fisherman, as the case may be.
Exception
(7) Subsections (1) to (3) do not apply in respect of any deposit of a
deleterious substance that, within the meaning of Part XV of the Canada Shipping
Act, constitutes a discharge of a pollutant caused by or otherwise attributable
to a ship.
Other civil remedies not affected
(8) No civil remedy for any act or omission is suspended or affected by reason
only that the act or omission is authorized under this Act, is an offence under
this Act or gives rise to civil liability under this Act.
R.S., c. 17(1st Supp.), s. 3; 1976-77, c. 35, s. 7.
Annual report
42.1 (1) The Minister shall, as soon as possible after the end of each fiscal
year, prepare and cause to be laid before Parliament a report on the
administration and enforcement of the provisions of this Act relating to fish
habitat protection and pollution prevention for that year.
Statistical summary
(2) The annual report shall include a statistical summary of convictions under
section 40 for that year.
1991, c. 1, s. 11.1.
REGULATIONS
Regulations
43. The Governor in Council may make regulations for carrying out the purposes
and provisions of this Act and in particular, but without restricting the
generality of the foregoing, may make regulations
(a) for the proper management and control of the sea-coast and inland fisheries;
(b) respecting the conservation and protection of fish;
(c) respecting the catching, loading, landing, handling, transporting,
possession and disposal of fish;
(d) respecting the operation of fishing vessels;
(e) respecting the use of fishing gear and equipment;
(e.1) respecting the marking, identification and tracking of fishing vessels;
(e.2) respecting the designation of persons as observers, their duties and their
carriage on board fishing vessels;
(f) respecting the issue, suspension and cancellation of licences and leases;
(g) respecting the terms and conditions under which a licence and lease may be
issued;
(g.1) respecting any records, books of account or other documents to be kept
under this Act and the manner and form in which and the period for which they
shall be kept;
(g.2) respecting the manner in which records, books of account or other
documents shall be produced and information shall be provided under this Act;
(h) respecting the obstruction and pollution of any waters frequented by fish;
(i) respecting the conservation and protection of spawning grounds;
(j) respecting the export of fish or any part thereof from Canada;
(k) respecting the taking or carrying of fish or any part thereof from one
province to any other province;
(l) prescribing the powers and duties of persons engaged or employed in the
administration or enforcement of this Act and providing for the carrying out of
those powers and duties; and
(m) where a close time, fishing quota or limit on the size or weight of fish 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 in
respect of that area or any portion of that area.
R.S., 1985, c. F-14, s. 43; R.S., 1985, c. 35 (1st Supp.), ss. 3, 7; 1991, c. 1,
s. 12.
MARINE PLANTS
Prohibition of harvesting of marine plants in certain cases
44. Except 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 pursuant to paragraph 46(a).
R.S., c. 17(1st Supp.), s. 5.
Licences
45. The Minister may, on receipt of an application made in accordance with the
regulations, issue a licence to the applicant for the harvesting of marine
plants in the coastal waters of Canada for a term not exceeding one year and on
such conditions relating to
(a) the nature of the gear and equipment to be used in the harvesting,
(b) the manner in which the harvesting is to be carried out,
(c) the quantity of marine plants authorized to be harvested thereunder, and
(d) the area or areas within the coastal waters of Canada where the harvesting
is to be carried out or where harvesting may not be carried out,
as the Minister considers to be necessary for the protection and conservation of
the marine plant resources of the coastal waters of Canada.
R.S., c. 17(1st Supp.), s. 5.
Regulations
46. The Governor in Council may make regulations
(a) prohibiting, subject to the conditions of any licence issued by the Minister
under section 45,
(i) the harvesting of marine plants or of any class of marine plants,
(ii) the harvesting of marine plants or of any class of marine plants in
quantities in excess of quantities specified in the regulations, or
(iii) the harvesting of marine plants or of any class of marine plants in a
manner specified in the regulations,
in the coastal waters of Canada or any area or areas of the coastal waters of
Canada specified in the regulations;
(b) prohibiting, notwithstanding the conditions of any licence, the harvesting
of marine plants or of any class of marine plants in any area or areas of the
coastal waters of Canada for such period or periods as are specified in the
regulations;
(c) requiring persons to whom licences are issued under section 45 to maintain
such books and records and to make such returns of information to the Minister
as the Governor in Council deems necessary for the enforcement of this Act and
the regulations; and
(d) prescribing the fees to be paid for licences issued under section 45.
R.S., c. 17(1st Supp.), s. 5; 1976-77, c. 35, s. 11.
Interpretation
47. For the purposes of sections 44 to 46,
"coastal waters of Canada" «eaux côtières du Canada»
"coastal waters of Canada" means all Canadian fisheries waters not within the
geographical limits of any province;
"harvest" «récolte»
"harvest" includes cut, take, dredge, rake or otherwise obtain;
"marine plant" «plante marine»
"marine plant" includes all benthic and detached algae, marine flowering plants,
brown algae, red algae, green algae and phytoplankton.
R.S., c. 17(1st Supp.), s. 5.
Saving
48. Nothing in sections 44 to 47 shall be construed as preventing traditional
harvesting of marine plants by aborigines for their use as food.
R.S., c. 17(1st Supp.), s. 5.
POWERS OF FISHERY OFFICERS AND FISHERY GUARDIANS
Inspection
49. (1) Subject to subsection (2), for the purpose of ensuring compliance with
this Act and the regulations, a fishery officer or fishery guardian may enter
and inspect any place, including any premises, vessel or vehicle, in which the
officer or guardian believes on reasonable grounds there is any work or
undertaking or any fish or other thing in respect of which this Act or the
regulations apply and may
(a) open any container that the officer or guardian believes on reasonable
grounds contains any fish or other thing in respect of which this Act or the
regulations apply;
(b) examine any fish or other thing that the officer or guardian finds and take
samples of it;
(c) conduct any tests or analyses and take any measurements; and
(d) require any person to produce for examination or copying any records, books
of account or other documents that the officer or guardian believes on
reasonable grounds contain information that is relevant to the administration of
this Act or the regulations.
Operation of data processing systems and copying equipment
(1.1) In carrying out an inspection of a place under subsection (1), a fishery
officer or fishery guardian may,
(a) use or cause to be used any data processing system at the place to examine
any data contained in or available to the data processing system;
(b) reproduce any record or cause it to be reproduced from the data in the form
of a print-out or other intelligible output and remove the print-out or other
output for examination or copying; and
(c) use or cause to be used any copying equipment at the place to make copies of
any record, book of account or other document.
Duty to assist
(1.2) The owner or person in charge of a place that is inspected by a fishery
officer or fishery guardian under subsection (1) and every person found in the
place shall
(a) give the officer or guardian all reasonable assistance to enable the officer
or guardian to carry out the inspection and exercise any power conferred by this
section; and
(b) provide the officer or guardian with any information relevant to the
administration of this Act or the regulations that the officer or guardian may
reasonably require.
Disposition of samples
(1.3) A fishery officer or fishery guardian who takes a sample under paragraph
(1)(b) may dispose of it in any manner that the officer or guardian considers
appropriate.
Warrant required to enter dwelling-house
(2) Where any place, premises, vessel or vehicle referred to in subsection (1)
is a dwelling-house, a fishery officer or fishery guardian may not enter that
dwelling-house without the consent of the occupant except under the authority of
a warrant issued under subsection (3).
Authority to issue warrant
(3) Where on ex parte application a justice of the peace is satisfied by
information on oath
(a) that the conditions for entry described in subsection (1) exist in relation
to a dwelling-house,
(b) that entry to the dwelling-house is necessary for any purpose relating to
the administration or enforcement of this Act, and
(c) that entry to the dwelling-house has been refused or that there are
reasonable grounds for believing that entry thereto will be refused,
the justice of the peace may issue a warrant under his hand authorizing the
fishery officer or fishery guardian named therein to enter that dwelling-house
subject to such conditions as may be specified in the warrant.
(4) [Repealed, 1991, c. 1, s. 13]
R.S., 1985, c. F-14, s. 49; R.S., 1985, c. 31 (1st Supp.), s. 35; 1991, c. 1, s.
13.
Search
49.1 (1) A fishery officer with a warrant issued under subsection (2) may enter
and search any place, including any premises, vessel or vehicle, in which the
officer believes on reasonable grounds there is
(a) any work or undertaking that is being or has been carried on in
contravention of this Act or the regulations;
(b) any fish or other thing by means of or in relation to which this Act or the
regulations have been contravened; or
(c) any fish or other thing that will afford evidence in respect of a
contravention of this Act or the regulations.
Authority to issue warrant
(2) Where on ex parte application a justice of the peace is satisfied by
information on oath that there are reasonable grounds to believe that there is
in any place referred to in subsection (1) any fish or other thing referred to
in subsection (1), the justice may issue a warrant authorizing the fishery
officer named in the warrant to enter and search the place for the thing subject
to any conditions that may be specified in the warrant.
Where warrant not necessary
(3) Notwithstanding subsection (1), a fishery officer may exercise the power of
search referred to in that subsection without a warrant issued under subsection
(2) if the conditions for obtaining the warrant exist but by reason of exigent
circumstances it would not be practical to obtain the warrant.
Exigent circumstances
(4) For the purposes of subsection (3), exigent circumstances include
circumstances in which the delay necessary to obtain the warrant would result in
danger to human life or safety or the loss or destruction of evidence.
Powers during search
(5) In carrying out a search of a place under this section, a fishery officer
may exercise any power mentioned in subsection 49(1), (1.1) or (1.3).
R.S., 1985, c. 31 (1st Supp.), s. 35; 1991, c. 1, s. 14.