Canadian Navigable Waters Act

From: Transport Canada

Disclaimer:

This page is meant to serve as a working tool to facilitate the understanding of how the amendments included in Bill C-69 change the Navigation Protection Act. It has no official sanction. Transport Canada and Justice Canada make no representation as to the accuracy of this codification.

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An Act respecting the protection of navigation in Canadian navigable waters

Short title

1 This Act may be cited as the Canadian Navigable Waters Act.

Interpretation

Definitions

2 The following definitions apply in this Act.

Indigenous knowledge means the Indigenous knowledge of the Indigenous peoples of Canada. (connaissances autochtones)

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)

major work means any work designated under paragraph 28(2)(b). (ouvrage majeur)

Minister means the Minister of Transport; (ministre)

minor work means any work designated under paragraph 28(2)(a). (ouvrage secondaire)

navigable water means a body of water, including a canal or any other body of water created or altered as a result of the construction of any work, that is used or where there is a reasonable likelihood that it will be used by vessels, in full or in part, for any part of the year as a means of transport or travel for commercial or recreational purposes, or as a means of transport or travel for Indigenous peoples of Canada exercising rights recognized and affirmed by section 35 of the Constitution Act, 1982, and

  • (a) there is public access, by land or by water;
  • (b) there is no such public access but there are two or more riparian owners; or
  • (c) Her Majesty in right of Canada or a province is the only riparian owner. (eaux navigables)

obstruction means any thing, including a vessel that is left anchored, moored or adrift or a wreck, that obstructs or impedes navigation or renders it more difficult or dangerous, but does not include a thing of natural origin unless a person causes the thing of natural origin to obstruct or impede navigation or to render it more difficult or dangerous.  (obstacle)

owner, in relation to a work, means the actual or reputed owner of the work or that owner’s agent or mandatary. It includes a person who is in possession or claiming ownership of the work and a person who is authorizing or otherwise responsible for the construction, placement, alteration, rebuilding, removal, decommissioning, repair, maintenance, operation, use or safety of the work. It also includes a person who proposes to construct or place a work. (propriétaire)

person in charge, with respect to an obstruction, includes the owner of the obstruction and, in the case of a vessel, or part of one, that is an obstruction, the registered owner or other owner at the time the obstruction was occasioned, as well as the managing owner, master and any subsequent purchaser. (responsable)

Tribunal means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act. (Tribunal)

vessel includes any description of ship, boat or floating craft designed, used or capable of being used for navigation, without regard to method or lack of propulsion, including everything forming part of its machinery, tackle, equipment, cargo, stores or ballast. (bâtiment)

work includes

  • (a) any structure, device or other thing, whether temporary or permanent, that is made by humans, including a structure, device or other thing used for the repair or maintenance of another work; and
  • (b) any dumping of fill in any navigable water, or any excavation or dredging of materials from the bed of any navigable water. (ouvrage)

Artificial irrigation channels and drainage ditches

2.01 For greater certainty, the definition navigable water in section 2 does not include artificial irrigation channels or drainage ditches.

Her Majesty

Binding on Her Majesty

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

Indigenous peoples of Canada

Rights of Indigenous peoples of Canada

2.2 For 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 Decision Maker

2.3 When making a decision under this Act, the Minister must 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.

Prohibition

Works

3 Except in accordance with this Act, it is prohibited to construct, place, alter, rebuild, remove or decommission a work in, on, over, under, through or across any navigable water.

Minor Works in any Navigable Water

Minor works

4 (1) An owner of a minor work may construct, place, alter, rebuild, remove or decommission the minor work in, on, over, under, through or across any navigable water in accordance with the requirements under this Act.

Repair, maintenance, operation and use

(2) The owner must repair, maintain, operate and use the minor work in accordance with the requirements under this Act.

Major Works in any Navigable Water and Works in Navigable Waters Listed in Schedule

Notice

4.1 An owner who proposes to construct, place, alter, rebuild, remove or decommission one of the following works may do so if the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, would not interfere with navigation and the owner, before beginning the construction, placement, alteration, rebuilding, removal or decommissioning, deposits any information specified by the Minister in any place specified by the Minister and publishes a notice in any manner, and including any information, specified by the Minister:

  • (a) a major work in, on, over, under, through or across any navigable water; or
  • (b) a work – other than a minor work – in, on, over, under, through or across any navigable water that is listed in the schedule.

Application for approval

5 (1) An owner who proposes to construct, place, alter, rebuild, remove or decommission one of the following works must make an application for an approval to the Minister – in the form and manner, and containing the information, specified by the Minister – if the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, may interfere with navigation:

  • (a) a major work in, on, over, under, through or across any navigable water; or
  • (b) a work — other than a minor work — in, on, over, under, through or across any navigable water that is listed in the schedule.

Related works

(2) If the Minister is of the opinion that two or more works are related, the Minister may consider them to be a single work.

Additional information

(3) For the purpose of determining whether the work or its construction, placement, alteration, rebuilding, removal or decommissioning may interfere with navigation, the Minister may require from the owner any additional information that the Minister considers appropriate.

No interference with navigation

6 If the Minister is of the opinion that a work that is the subject of an application made under subsection 5(1), or its construction, placement, alteration, rebuilding, removal or decommissioning, would not interfere with navigation, including by changing the water level or water flow of a navigable water, he or she must inform the owner, in writing, of that opinion and no approval is required under subsection 7(6) for that work — or its construction, placement, alteration, rebuilding, removal or decommissioning.

Interference with navigation

7 (1) If the Minister is of the opinion that a work that is the subject of an application made under subsection 5(1), or its construction, placement, alteration, rebuilding, removal or decommissioning, may interfere with navigation, including by changing the water level or water flow of a navigable water, he or she must inform the owner, in writing, of that opinion and the owner may only construct, place, alter, rebuild, remove or decommission that work if the Minister issues an approval for the work.

Information

(2) The owner must deposit any information specified by the Minister in any place specified by the Minister.

Notice

(3) The owner must publish a notice containing any information specified by the Minister in any manner specified by the Minister.

Comment Period

(4) The notice referred to in subsection (3) must invite interested persons to provide written comments on the owner’s proposal to the Minister within 30 days after publication of the notice or within any other period specified by the Minister.

Exemption

(5) If the Minister is satisfied that the owner has already deposited sufficient information in a place specified by the Minister or published a sufficient notice, the Minister may exempt the owner from the application of subsection (2) or (3), as the case may be.

Approval

(6) The Minister may issue an approval for the work, including its site and plans, if he or she considers it appropriate in the circumstances.

Assessment — factors

(7) In determining whether to issue the approval, the Minister must consider the following:

  • (a) the characteristics of the navigable water in question;
  • (b) the safety of navigation in that navigable water;
  • (c) the current or anticipated navigation in that navigable water;
  • (d) the impact of the work on navigation, including as a result of its construction, placement, alteration, rebuilding, removal, decommissioning, repair, maintenance, operation or use;
  • (e) the impact of the work, in combination with other works, on navigation, if the Minister is provided with, or has in his or her possession, information relating to that cumulative impact;
  • (f) any Indigenous knowledge that has been provided to the Minister;
  • (g) any comments that he or she receives from interested persons within the period provided for under subsection (4);
  • (h) the record of compliance of the owner under this Act; and
  • (i) any other information or factor that he or she considers relevant.

Additional information

(8) For the purpose of determining whether to issue the approval, the Minister may require from the owner any additional information that the Minister considers appropriate.

Terms and conditions

(9) The Minister may attach any term or condition that he or she considers appropriate to an approval including one that requires the owner to

  • (a) maintain the water level or water flow necessary for navigation purposes in a navigable water; or
  • (b) give security in the form of a letter of credit, guarantee, suretyship or indemnity bond or insurance or in any other form that is satisfactory to the Minister.

Effect of approval

(10) An approval issued under this section in relation to a work replaces any approval previously issued in relation to that work.

Contiguous area

(11) The Minister may, in an approval, designate an area contiguous to a work that is necessary for the safety of persons and navigation and, for the purposes of the approval, that area is considered to be part of the work.

Compliance with requirements

(12) The owner must comply with the approval and maintain, operate and use the work in accordance with the requirements under this Act.

Approval after activity begins

(13) The Minister may, if he or she considers that it is justified in the circumstances, approve the construction, placement, alteration, rebuilding, removal or decommissioning of a work after the construction, placement, alteration, rebuilding, removal or decommissioning begins or is completed

Transfer

8 If the ownership of a work to which an approval relates is transferred, the transferor and the transferee must immediately give written notice of the transfer to the Minister, in the form and manner, and containing the information, specified by the Minister.

Amendment of approval

9 (1) The Minister may amend an approval by amending or revoking any term or condition of the approval.

Amendment resulting from order

(2) The Minister may otherwise amend the approval, including by adding terms and conditions, to reflect any changes to the work resulting from an order made under section 11 or 13.

Other amendments

(3) The Minister may otherwise amend the approval, including by adding terms and conditions, if he or she considers that

  • (a) the work that is the subject of the approval interferes more with navigation at the time in question than it did when the approval was issued;
  • (b) the work causes or is likely to cause a serious and imminent danger to navigation;
  • (c) the amendment of the approval is in the public interest; or
  • (d) the owner consents to the amendment.

Suspension or cancellation

(4) The Minister may suspend or cancel an approval if he or she considers that

  • (a) the owner has not complied with the approval;
  • (b) the approval was obtained by a fraudulent or improper means or by the misrepresentation of a material fact;
  • (c) the owner has not paid a fine or penalty imposed under this Act;
  • (d) the owner has contravened this Act; or
  • (e) the suspension or cancellation is in the public interest, including by reason of the record of compliance of the owner under this Act.

Notice

(5) The Minister must give the owner 30 days’ notice setting out the grounds on which the Minister relies for the amendment, except in the case of an amendment made under subsection (2) or paragraph (3)(b), suspension or cancellation of the approval of a work if he or she is amending it without the owner’s consent or suspending or cancelling it.

Works in navigable waters not listed in Schedule

Notice

9.1 An owner who proposes to construct, place, alter, rebuild, remove or decommission a work – other than a major work or a minor work – in, on, over, under, through or across any navigable water that is not listed in the schedule may do so if

  • (a) the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, would not interfere with navigation; and
  • (b) before beginning the construction, placement, alteration, rebuilding, removal or decommissioning, the owner deposits any information specified by the Minister in any place specified by the Minister and publishes a notice in any manner, and including any information, specified by the Minister.

Application or notice

10 (1) An owner who proposes to construct, place alter, rebuild, remove or decommission a work – other than a major work or a minor work – in, on, over, under, through or across any navigable water that is not listed in the schedule must take one of the following steps if the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, may interfere with navigation:

  • (a) make an application for an approval to the Minister, in the form and manner, and containing the information, specified by the Minister; or
  • (b) deposit any information specified by the Minister in any place specified by the Minister and publish a notice in any manner, and including any information, specified by the Minister.

Deeming

(2) An application made under paragraph (1)(a) is deemed to be an application made under subsection 5(1) and, if an approval is issued under subsection 7(6) in respect of the application, the work to which the approval relates is deemed to be a work constructed or placed in, on, over, under, through or across a navigable water that is listed in the schedule.

Comment period

(3) The notice referred to in paragraph (1)(b) must invite interested persons to provide written comments on the proposal, as it relates to navigation, to the owner within 30 days after publication of the notice or within any other period prescribed by regulation.

Attempt to resolve

10.1 (1) If a comment that is provided to an owner under subsection 10(3) expresses a concern relating to navigation, the owner and the person who made the comment must attempt to resolve the person’s concern within 45 days after the end of the period set out in that subsection or within any other period prescribed by regulation.

Change to proposal

(2) If, as a result of an attempt to resolve a concern under subsection (1), the owner makes a material change to the proposal, he or she must deposit the new information and publish a new notice, in accordance with paragraph 10(1)(b).

Request to Minister

(3) If the concern is not resolved within the period referred to in subsection (1), the person who made the comment may, within 15 days after the end of that period or within any other period prescribed by regulation, make a request to the Minister — in the form and manner, and containing the information, specified by the Minister — for a decision on whether the owner is required to apply for an approval in relation to the work.

Decision by Minister

(4) On receipt of a request under subsection (3), the Minister may decide that the owner is required to apply for an approval in relation to the work.

Additional information

(5) For the purpose of deciding whether to require an application for an approval under subsection (4), the Minister may require from the owner any additional information that the Minister considers appropriate.

Notice

(6) The Minister must inform the owner and the person who made the request of his or her decision.

Work may commence

10.2 (1) An owner who publishes a notice referred to in paragraph 10(1)(b) may only construct, place, alter, rebuild, remove or decommission the work

  • (a) if no comments are provided to the owner, or if comments are provided to the owner but no concerns relating to navigation are expressed in those comments, after the day on which the comment period ends;
  • (b) if comments are provided to the owner and concerns relating to navigation are expressed in those comments but all such concerns are resolved, after the later of
    • (i) the day on which the comment period ends, and
    • (ii) the day on which all the concerns are resolved; or
  • (c) if comments are provided to the owner and those comments express concerns relating to navigation but any such concern remains unresolved and
    • (i) no request is made under subsection 10.1(3), after the day on which the period set out in that subsection ends, or
    • (ii) a request is made under subsection 10.1(3) and
      • (A) the Minister determines that the owner is not required to apply for an approval in relation to the work, after the day on which the owner receives notice of that decision, or
      • (B) the Minister determines that the owner is required to apply for an approval in relation to the work, after the day on which the approval is issued or, if it is later, the day set out in the approval.

Prohibition

(2) Despite subsection (1), an owner is prohibited from constructing, placing, altering, rebuilding, removing or decommissioning a work that extinguishes navigation for vessels of any class that navigate, or are likely to navigate, the navigable water in question.

Change

(3) For greater certainty, if, at any time, an owner referred to in subsection (1) makes a material change to the work or to the method of its construction, placement, alteration, rebuilding, removal or decommissioning, the owner must either make an application under paragraph 10(1)(a) or deposit new information and publish a new notice in accordance with paragraph 10(1)(b).

Owner’s Duty

Notification

10.3 (1) An owner of a work in, on, over, under, through or across any navigable water must immediately notify the Minister if the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, causes or is likely to cause a serious and imminent danger to navigation.

Duty

(2) The owner must, as soon as feasible, take all reasonable measures consistent with public safety and with the safety of navigation to prevent any serious and imminent danger to navigation that is caused or likely to be caused by the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, or to counteract, mitigate or remedy any adverse effects that result from that danger to navigation or might reasonably be expected to result from it.

Minister’s Powers

Emergency

10.4 (1) Even if the application referred to in subsection 5(1) or paragraph 10(1)(a) has not yet been made, or the notice referred to in paragraph 10(1)(b) has not yet been published, the Minister may authorize, subject to any terms or conditions that he or she considers appropriate, the construction, placement, alteration, rebuilding, removal or decommissioning of a work — other than a minor work — in, on, over, under, through or across any navigable water if the Minister is of the opinion that it must be carried out immediately in order to respond to

  • (a) a matter of national security;
  • (b) a national emergency in respect of which special temporary measures are being taken under the Emergencies Act; or
  • (c) an emergency that
    • (i) poses a risk to public health, safety, the environment or property, or
    • (ii) threatens to cause social disruption or a breakdown in the flow of essential goods, services or resources.

Approval

(2) The Minister may issue an approval for a work authorized under subsection (1), including its site and plans, if he or she considers it appropriate in the circumstances.

Application

11 (1) This section applies to any work in, on, over, under, through or across any navigable water that is constructed, placed, altered, rebuilt, removed, decommissioned, repaired, maintained, operated or used contrary to the requirements under this Act.

Minister’s powers

(2) The Minister may

  • (a) order the owner of a work to repair, alter or remove the work;
  • (b) during the construction, placement, alteration, repair, rebuilding, removal or decommissioning of a work, order any person to remove or alter the work or to do any other thing with respect to the work, including taking all measures necessary for the safety of navigation;
  • (c) if the owner or the person fails to comply with an order given under paragraph (a) or (b), cause any thing to be done with respect to the work, including the removal of the work, its destruction and the sale, donation or other disposal of the materials contained in the work; and
  • (d) order any person to refrain from proceeding with the construction, placement, alteration, repair, rebuilding, removal or decommissioning of a work.

Debt

(3) The amount of the costs incurred by the Minister while acting under paragraph (2)(c) constitutes a debt due to Her Majesty in right of Canada.

Surplus

(4) The Minister must pay all or any portion of the surplus of the proceeds of any sale to the owner of the work sold or to any other person that is entitled to the proceeds.

Repair, alteration or removal

13 (1) The Minister may order the owner of a work in, on, over, under, through or across any navigable water to repair, alter or remove it if he or she considers that

  • (a) it interferes more with navigation at the time in question than it did when it was constructed or placed;
  • (b) it is causing or is likely to cause a serious and imminent danger to navigation; or
  • (c) its repair, alteration or removal is in the public interest.

Works

(2) The Minister may, if he or she is satisfied that it is necessary in the circumstances, order the owner to do any other thing with respect to the work.

Failure to comply

(3) If the owner fails to comply with an order made under subsection (1) or (2), the Minister may do any thing with respect to the work that he or she considers appropriate.

Debt

(4) The amount of the costs incurred by the Minister while acting under subsection (3) constitutes a debt due to Her Majesty in right of Canada.

Surplus

(5) The Minister must pay all or any portion of the surplus of the proceeds of any sale to the owner of the work sold or to any other person that is entitled to the proceeds.

Designation of Areas

Designation

13.1 The Governor in Council may, by order, designate areas where no work may be constructed or placed.

General

Statutory Instruments Act

14 For greater certainty, approvals issued under subsection 7(6) or (13), terms and conditions imposed under subsection 7(9) or 9(2) or (3) or section 10.4 and orders given under paragraph 11(2)(a), (b) or (d) or subsection 13(1) or (2) are not statutory instruments as defined in subsection 2(1) of the Statutory Instruments Act.

Obstruction

15 (1) The person in charge of an obstruction in a navigable water must immediately give notice of the existence of the obstruction to the Minister, in the form and manner, and containing the information, specified by the Minister.

Measures

(2) Unless otherwise ordered by the Minister under subsection (3), the person in charge of the obstruction must

  • (a) place and, as long as the obstruction is present, maintain, by day, a sufficient signal and, by night, a sufficient light, to indicate the position of the obstruction; and
  • (b) immediately begin its removal and carry on the removal diligently to completion.

Minister’s powers

(3) The Minister may order the person in charge of an obstruction in a navigable water to repair, secure, move, remove, dismantle or destroy it in the manner that the Minister considers appropriate or, if he or she is satisfied that it is necessary in the circumstances, may order the person to do any other thing with respect to the obstruction.

Failure to comply

(4) If the person in charge of the obstruction fails to comply with paragraph (2)(a) or (b) or an order made under subsection (3), the Minister may do any thing with respect to the obstruction that he or she considers appropriate.

Potential obstruction

15.1 (1) The Minister may order the person in charge of a potential obstruction that has persisted for more than 24 hours in a navigable water to repair, secure, move, remove, dismantle or destroy it in the manner that the Minister considers appropriate or, if he or she is satisfied that it is necessary in the circumstances, may order the person to do any other thing with respect to the potential obstruction.

Failure to comply

(2) If the person to whom an order is given fails to comply with it, the Minister may do any thing with respect to the potential obstruction that he or she considers appropriate.

Minister’s power

15.2 If the person in charge of an obstruction or a potential obstruction in a navigable water is not known or cannot be located, the Minister may repair, secure, move, remove, dismantle or destroy it or do any other thing with respect to the obstruction or potential obstruction that he or she considers appropriate.

Property belonging to Her Majesty

16 (1) The Minister may order any person to secure, remove or destroy a wreck, vessel, part of a vessel or other thing that is cast ashore, stranded or left on any property belonging to Her Majesty in right of Canada and impedes, for more than 24 hours, the use of that property as may be required for the public purposes of Canada.

Failure to comply

(2) If the person to whom an order is given fails to comply with the order, the Minister may do any thing with respect to the wreck, the vessel, the part of a vessel or the thing that he or she considers appropriate.

Sale

17 (1) If a person in charge of an obstruction or potential obstruction in a navigable water fails to comply with paragraph 15(2)(a) or (b) or is not known or cannot be located, or if a person to whom an order is given under subsection 15(3), 15.1(1) or 16(1) fails to comply with the order, the Minister may sell by auction or otherwise, as he or she considers appropriate, the obstruction or potential obstruction or the thing referred to in subsection 16(1). The Minister may apply the proceeds of the sale to make good the costs incurred by the Minister while acting under subsection 15(4) or 15.1(2) or section 15.2 or subsection 16(2), as the case may be.

Surplus

(2) The Minister must pay all or any portion of the surplus of the proceeds of the sale to the person in charge of the obstruction or potential obstruction sold or to any other person that is entitled to the proceeds.

Debt

18 (1) The amount of the costs incurred by the Minister while acting under subsection 15(4) or 15.1(2) or section 15.2 or subsection 16(2) constitutes a debt due to Her Majesty in right of Canada.

Recovery by Her Majesty

(2) Such debts are recoverable from

  • (a) the person in charge of the obstruction at the time the obstruction was occasioned;
  • (b) any person through whose act or fault or through the act or fault of whose servant the obstruction was occasioned or continued;
  • (b.1) the person in charge of the potential obstruction at the time potential obstruction was identified;
  • (b.2) any person through whose act or fault or through the act or fault of whose servant the potential obstruction was occasioned or continued; or
  • (c) the person to whom the order referred to in subsection 16(1) is given.

Statutory Instruments Act

19 For greater certainty, an order given under subsection 15(3), 15.1(1) or 16(1) is not a statutory instrument as defined in subsection 2(1) of the Statutory Instruments Act.

Section 20 is repealed

Note that the Wrecked, Abandoned or Hazardous Vessels Act came into force on July 30, 2019. Section 38 of that Act repealed section 20 of the Canadian Navigable Waters Act.

Deposit and Dewatering

Throwing or depositing sawdust, etc., prohibited

21 No person shall throw or deposit or cause, suffer or permit to be thrown or deposited any sawdust, edgings, slabs, bark or like rubbish of any description whatever that is liable to interfere with navigation in any water, any part of which is navigable or that flows into any navigable water.

Throwing or depositing stone, etc., prohibited

22(1) No person shall throw or deposit or cause, suffer or permit to be thrown or deposited any stone, gravel, earth, cinders, ashes or other material or rubbish that is liable to sink to the bottom in any water, any part of which is navigable or flows into any navigable water, where there is not a minimum depth of 36 metres of water at all times, but nothing in this section shall be construed so as to permit the throwing or depositing of any substance in any part of a navigable water if it is prohibited by or under any other federal Act.

Non-application

(2) The prohibition in subsection (1) does not apply with respect to the dumping of fill done in compliance with an approval issued under subsection 7(6).

Dewatering and other actions

23 (1) No person shall take any action that lowers the water level of a navigable water or any part of a navigable water to a level that extinguishes navigation for vessels of any class that navigate, or are likely to navigate, the navigable water in question.

Historic canals

(2) Subsection (1) does not apply to a historic canal as defined in section 2 of the Historic Canals Regulations.

Navigation not extinguished

(3) For the purposes of this Act, navigation is not extinguished if the Minister is of the opinion that there are sufficient measures in place to mitigate the impact of the lower water level on navigation and he or she approves the work whose construction, placement, alteration, rebuilding, removal, decommissioning, repair, maintenance, operation or use lowers the water level of a navigable water or part of a navigable water.

Exemption by order

24 (1) The Governor in Council may, by order, exempt from the application of any of sections 21 to 23, any rivers, streams or waters, in whole or in part, if the Minister receives an application for an exemption and the Governor in Council is satisfied that it would be in the public interest.

Application

(2) An application for an exemption under subsection (1) must be made in the form and manner, and contain the information, specified by the Minister.

Powers of certain persons

25 Sections 21, 22, and 26 do not affect the legal powers, rights or duties of harbour masters, port wardens, the person responsible for the management of the St. Lawrence Seaway or a port authority established under the Canada Marine Act in respect of materials that, under those sections, are not allowed to be deposited in navigable waters.

Minister’s powers

25.1 (1) The Minister may

  • (a) order any person who is contravening section 21 or 22 to stop throwing or depositing or causing, suffering or permitting to be thrown or deposited any material or rubbish;
  • (b) order any person who contravened section 21 or 22 to remove the material or rubbish in question or to do any other thing with respect to it, including taking all measures necessary for the safety of navigation;
  • (c) if a person fails to comply with an order given under paragraph (a) or (b), cause any thing to be done with respect to the material or rubbish in question, including its removal and disposition;
  • (d) order any person who is contravening subsection 23(1) to stop taking the action that is lowering the level of the navigable water;
  • (e) order any person who has contravened subsection 23(1) to take any action necessary to restore the level of the navigable water to the level that the Minister considers acceptable; and
  • (f) if a person fails to comply with an order given under paragraph (d) or (e), cause any thing to be done with respect to the navigable water, including the taking of any action necessary to restore the level of the navigable water to the level that the Minister considers acceptable.

Debt

(2) The amount of the costs incurred by the Minister while acting under paragraph (1)(c) or (f) constitutes a debt due to Her Majesty in right of Canada.

Statutory Instruments Act

(3) For greater certainty, an order given under this section is not a statutory instrument as defined in subsection 2(1) of the Statutory Instruments Act.

Designated places to deposit materials

26 (1) The Governor in Council may, by regulation, designate places in any navigable water that is not within the jurisdiction of any person referred to in section 25, where stone, gravel, earth, cinders, ashes or other material may be deposited even if the minimum depth of water at that place may be less than 36 metres.

Ministerial approval

(2) The Minister may, on application, authorize the deposit of materials in a place designated under subsection (1).

Application

(3) An application under subsection (2) must be made in the form and manner, and contain the information, specified by the Minister.

Non-application

(4) For greater certainty, this section does not apply with respect to the dumping of fill done in compliance with an approval issued under subsection 7(6).

Studies and Collection of Information

Minister

26.1 The Minister may undertake any study and collect any information that, in his or her opinion, is necessary for the purposes of the administration of this Act.

Indigenous Knowledge

Confidentiality

26.2 (1) Any Indigenous knowledge that is provided to the Minister under this Act in confidence is confidential and must 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 28(1)(g.2).

Consultation

(2.1) Before disclosing Indigenous knowledge under paragraph 2(b) for the purposes of procedural fairness and natural justice, the Minister must 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) must comply with any conditions imposed by the Minister under that subsection.

Protection from civil proceeding or prosecution

(5) Despite any other Act of Parliament, no civil or criminal proceedings lie against the Minister — or any person acting on behalf of, or under the direction of, him or her— and no proceedings lie against the Crown, for the disclosure in good faith of any Indigenous knowledge under this Act or for any consequences that flow from that disclosure.

Agreements and Arrangements

Agreements and arrangements

27 The Minister may, with respect to his or her responsibilities under this Act, enter into agreements or arrangements for carrying out the purposes of this Act and authorize any other federal minister, person or organization with whom an agreement or arrangement is entered into to exercise the powers or perform the duties under this Act that are specified in the agreement or arrangement.

Agreement — cost recovery

27.1 (1) The Minister may enter into an agreement with any person or organization respecting any matter for which a regulation made under paragraph 28(1)(b) could prescribe a fee.

Regulations — exemption

(2) If both an agreement entered into under subsection (1) and a regulation made under paragraph 28(1)(b) relate to the same matter, the regulation does not apply to the person or organization that has entered into the agreement in respect of the matter for which payment is required under the agreement.

Recovery

(3) When the Minister enters into an undertaking with respect to a matter for which payment of an amount is required from the other party under the terms of an agreement entered into under subsection (1), the undertaking is deemed, for the purposes of recovering that amount, not to be a duty of the Minister under this Act.

Debt due to Her Majesty

(4) All amounts payable under an agreement entered into under subsection (1) and any interest payable on them constitute a debt due to Her Majesty in right of Canada.

Spending

(5) The Minister may spend the amounts received under an agreement entered into under subsection (1) in the fiscal year in which they are received or in the next fiscal year.

Registry

Establishment

27.2 (1) The Minister must establish and maintain a registry in which information that he or she specifies is deposited.

Access

(2) The Minister must make the registry accessible to the public through the Internet and by any other means that he or she considers appropriate.

Types of documents in registry

(3) The registry must contain only records or parts of a record

  • (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.

Protection from civil proceeding or prosecution

(4) Despite any other Act of Parliament, no civil or criminal proceedings lie against the Minister, or any person acting on behalf of, or under the direction of, him or her or against the Crown, for the disclosure in good faith of any record or any part of a record under this Act or for any consequences that flow from that disclosure.

Regulations, Orders, Incorporation by Reference and Interim Orders

Regulations and Orders

Regulations by Governor in Council

28 (1) The Governor in Council may, for the purposes of this Act, make regulations

  • (a) respecting time limits for issuing approvals or for refusing to do so;
  • (b) respecting fees, or the method of calculating fees, to be paid for any service provided or any right or privilege conferred by means of an approval, exemption or other authorization under this Act and respecting the payment of those fees;
  • (c) respecting the issuance, amendment, suspension and cancellation of approvals in relation to works;
  • (d) respecting the water levels and water flow necessary for navigation;
  • (e) respecting the construction, placement, alteration, rebuilding, removal, decommissioning, repair, maintenance, operation, use or safety of works in, on, over, under, through or across any navigable waters;
  • (e.1) prescribing periods for the purposes of subsections 10(3) and 10.1(1) and (3);
  • (f) respecting areas contiguous to works that are necessary for the safety of persons and navigation;
  • (f.1) respecting places in any navigable water where stone, gravel, earth, cinders, ashes or other material may be deposited and the deposit of such materials in such places;
  • (g) respecting notification requirements in the case of a change in owner of a work;
  • (g.1) excluding any body of water that the Governor in Council considers to be small from the definition navigable water in section 2;
  • (g.2) prescribing the circumstances in which the Indigenous knowledge that is provided to the Minister under this Act in confidence may be disclosed without written consent;
  • (h) excluding any thing from the definition obstruction in section 2;
  • (i) designating any provision of this Act, of the regulations or of an order as a provision whose contravention may be proceeded with as a violation in accordance with sections 39.1 to 39.26;
  • (j) establishing a penalty, or a range of penalties, in respect of each violation;
  • (k) establishing criteria to be considered in determining the amount of the penalty if a range of penalties is established;
  • (l) classifying each violation as a minor violation, a serious violation or a very serious violation;
  • (m) respecting the circumstances under which, the criteria by which and the manner in which the amount of a penalty may be increased or reduced in whole or in part;
  • (n) providing for a lesser amount that may be paid as complete satisfaction of a penalty if it is paid within the prescribed time and in the prescribed manner and providing, among other things, the circumstances in which the lesser amount may be set out in a notice of violation;
  • (o) prescribing anything that is to be prescribed under this Act; and
  • (p) for carrying out the purposes and provisions of this Act.

Minister’s power

(2) The Minister may make an order

  • (a) designating any works that are likely to slightly interfere with navigation as minor works;
  • (b) designating any works that are likely to substantially interfere with navigation as major works;
  • (c) respecting the construction, placement, alteration, rebuilding, removal, decommissioning, repair, maintenance, operation, use or safety of works in, on, over, under, through or across any navigable waters; and
  • (d) respecting the registry established under section 27.2, including specifying records or information to be posted on the Internet site.

Classes

(3) A regulation or order made under this section may establish classes and distinguish among those classes.

Conflict

(4) If there is a conflict between a regulation made under paragraph (1)(e) and an order made under paragraph (2)(c), the regulation prevails.

Addition to schedule

29 (1) The Minister may, by order, amend the schedule by adding to it a reference to a navigable water after considering the following factors:

  • (a) whether the navigable water is on a nautical chart issued officially by or on the authority of the Canadian Hydrographic Service;
  • (b) the physical characteristics of the navigable water;
  • (c) whether the navigable water connects to other navigable waters and, if so, how it connects to them;
  • (d) the safety of navigation in the navigable water;
  • (e) the past, current or anticipated navigation in the navigable water;
  • (f) whether there are Indigenous peoples of Canada who navigate, have navigated or will likely navigate the navigable water in order to exercise rights recognized and affirmed by section 35 of the Constitution Act, 1982; and
  • (g) the cumulative impact of works on navigation in the navigable water.

Request — addition

(2) Any person may request that the Minister add a reference to a navigable water to the schedule by submitting an application in the form and manner, and containing the information, specified by the Minister.

Other amendment of schedule

(3) The Minister may, by order, amend the schedule by amending a reference to a navigable water and the Governor in Council may, by regulation, amend the schedule by deleting a reference to a navigable water.

Incorporation by Reference

Incorporation by reference

30 (1) A regulation or order made under this Act may incorporate by reference any document, regardless of its source, either as it exists on a particular date or as it is amended from time to time.

Accessibility

(2) The Minister shall ensure that any document that is incorporated by reference in the regulation or order is accessible.

Defence

(3) A person is not liable to be found guilty of an offence for any contravention in respect of which a document that is incorporated by reference in the regulation or order is relevant unless, at the time of the alleged contravention, the document was accessible as required by subsection (2) or it was otherwise accessible to the person.

No registration or publication

(4) For greater certainty, a document that is incorporated by reference in the regulation or order is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.

Interim Orders

Interim orders

32 (1) The Minister may make an interim order that contains any provision that may be contained in a regulation made under this Act if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to safety or security.

Cessation of effect

(2) An interim order has effect from the time that it is made but ceases to have effect on the earliest of

  • (a) 14 days after it is made, unless it is approved by the Governor in Council,
  • (b) the day on which it is repealed,
  • (c) the day on which a regulation made under this Act, that has the same effect as the interim order, comes into force, and
  • (d) one year after the interim order is made or any shorter period that may be specified in the interim order.

Contravention of unpublished order

(3) No person shall be convicted of an offence consisting of a contravention of an interim order that, at the time of the alleged contravention, had not been published in the Canada Gazette unless it is proved that, at the time of the alleged contravention, the person had been notified of the interim order or reasonable steps had been taken to bring the purport of the interim order to the notice of those persons likely to be affected by it.

Exemption from Statutory Instruments Act

(4) An interim order

Deeming

(5) For the purpose of any provision of this Act other than this section, any reference to regulations made under this Act is deemed to include interim orders, and any reference to a regulation made under a specified provision of this Act is deemed to include a reference to the portion of an interim order containing any provision that may be contained in a regulation made under the specified provision.

 

Tabling of order

(6) A copy of each interim order must be tabled in each House of Parliament within 15 days after it is mad

House not sitting

(7) In order to comply with subsection (6), the interim order may be sent to the Clerk of the House if the House is not sitting.

Administration and Enforcement

Designation

Designation

33 The Minister may designate persons or classes of persons for the purposes of the administration and enforcement of this Act.

Powers

Authority to enter

34 (1) Subject to subsection 36(1), a designated person may, for a purpose related to verifying compliance with this Act, enter a place, including an obstruction, work or vessel, in which they have reasonable grounds to believe that an activity regulated under this Act is conducted or an item to which this Act applies, or any information relating to such an activity or item, is located.

Certification

(2) On entering a place, the designated person shall, on request, produce to the person in charge of the place a certification in the form established by the Minister attesting to the designation.

Powers

(3) The designated person may, for the purposes referred to in subsection (1),

  • (a) examine the place and anything in the place;
  • (b) remove any document or other thing from the place for examination or, in the case of a document, copying;
  • (c) direct any person to put into operation or cease operating any work, vessel or other conveyance, machinery or equipment in the place;
  • (d) prohibit or limit access to the place for as long as specified;
  • (e) take photographs and make video recordings and sketches;
  • (f) use or cause to be used any computer system or data processing system at the place to examine any data contained in, or available to, the system;
  • (g) reproduce any record, or cause it to be reproduced from the data, in the form of a printout or other intelligible output and remove the printout or other output for examination or copying;
  • (h) use or cause to be used any copying equipment at the place to make copies of any books, records, electronic data or other documents; and
  • (i) order any person in the place to establish their identity to the designated person’s satisfaction.

Persons accompanying designated person

(3.1) The designated person may be accompanied by any person that they consider necessary to help them exercise their powers or perform their duties or functions under this section.

Entry — private property

(4) The designated person, in carrying out their functions under this section, and a person accompanying them may enter on and pass through or over private property without being liable for doing so.

Duty to assist

35 The owner or person who is in charge of a place that is entered under subsection 34(1) and every person who is in the place shall

  • (a) give a designated person who is carrying out their functions under section 34 all reasonable assistance; and
  • (b) provide them with any information that they may reasonably require.

Warrant for dwelling-house

36 (1) If any place referred to in subsection 34(1) is a dwelling-house, the designated person may not enter it without the consent of the occupant except under the authority of a warrant issued under subsection (2).

Authority to issue warrant

(2) On ex parte application, a justice of the peace may issue a warrant authorizing the person who is named in it to enter a dwelling-house, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that

  • (a) the dwelling-house is a place referred to in subsection 34(1);
  • (b) entry to the dwelling-house is necessary for a purpose related to verifying compliance with this Act; and
  • (c) entry to the dwelling-house was refused by the occupant or there are reasonable grounds to believe that entry will be refused or consent to entry cannot be obtained from the occupant.

Use of force

(3) In executing a warrant to enter a dwelling-house, a designated person may use force only if the use of force has been specifically authorized in the warrant and they are accompanied by a peace officer.

Production of documents or information

36.1 A designated person may, for a purpose related to verifying compliance with this Act, order a person to provide, on the date, at the time and place and in the manner specified by the designated person, any document or information specified by the designated person.

Seizure

36.2 (1) The designated person may seize and detain anything that he or she has reasonable grounds to believe was used in the contravention of any provision of this Act or the regulations or is related to such a contravention.

Custody of things seized

(2) If a designated person seizes a thing under subsection (1), sections 489.1 and 490 of the Criminal Code apply and the designated person, or any person that he or she may designate, must retain custody of the thing, subject to any order made under section 490 of the Criminal Code.

Return of anything removed

36.3 (1) Anything removed under paragraph 34(3)(b) must be returned as soon as feasible after it is no longer required for the purpose for which it was taken unless

  • (a) the thing, in the designated person’s opinion, is no longer useful; or
  • (b) the owner is unknown or cannot be located.

Thing not returned

(2) A designated person may dispose of anything that is not returned under subsection (1), in the manner that they consider appropriate, and any proceeds realized from the disposition are to be paid to the Receiver General.

Prohibitions

False statements or information

37 (1) No person shall knowingly, orally or in writing, make a false or misleading statement or provide false or misleading information, in connection with any matter under this Act, to a designated person who is carrying out their functions under section 34.

Obstruction

(2) No person shall knowingly obstruct or hinder a designated person who is carrying out their functions under section 34.

Injunction

Injunction

38 (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done, is about to do or is likely to do any act constituting or directed toward the commission of an offence or a violation under this Act, the court may issue an injunction ordering a person named in the application

  • (a) to refrain from doing an act that, in the opinion of the court, may constitute or be directed toward the commission of the offence or the violation; or
  • (b) to do an act that, in the opinion of the court, may prevent the commission of the offence or the violation.

Notice

(2) No injunction may be issued under subsection (1) unless 48 hours’ notice is served on the party or parties named in the application or the urgency of the situation is such that service would not be in the public interest.

Immunity

Not personally liable

39 (1) Servants of the Crown, as those terms are defined in section 2 of the Crown Liability and Proceedings Act, and persons accompanying a designated person under subsection 34(3.1) are not personally liable for anything they do or omit to do in good faith under this Act.

Crown not relieved

(2) Subsection (1) does not, by reason of section 10 of the Crown Liability and Proceedings Act, relieve the Crown of liability for a tort or extracontractual civil liability to which the Crown would otherwise be subject.

Administrative Monetary Penalties

 

Violations

Commission of violation

39.1 (1) Every person who contravenes a provision designated under paragraph 28(1)(i) commits a violation and is liable to a penalty established in accordance with the regulations.

Purpose of penalty

(2) The purpose of a penalty is to promote compliance with this Act and not to punish.

Maximum penalty

(3) The maximum penalty for a violation is $50,000, in the case of an individual, and $250,000 in any other case.

Proceedings

Notice of violation

39.11 (1) A designated person may issue a notice of violation and cause it to be provided to a person if the designated person has reasonable grounds to believe that the person has committed a violation.

Contents of notice

(2) The notice of violation shall

  • (a) name the person believed to have committed the violation;
  • (b) identify the acts or omissions that constitute the alleged violation;
  • (c) set out the penalty for the violation that the person is liable to pay;
  • (d) set out the particulars concerning the time and manner of payment; and
  • (e) set out a lesser amount that may be paid as complete satisfaction of the penalty if it is paid within the prescribed time and in the prescribed manner that are specified in the notice.

Summary of rights

(3) A notice of violation shall summarize, in plain language, the rights and obligations under this section and sections 39.12 to 39.23 of the person to whom it is provided, including the right to request a review of the acts or omissions that constitute the alleged violation or of the amount of the penalty and the procedure for requesting the review.

Short-form descriptions

(4) The Minister may establish a short-form description of each violation to be used in notices of violation.

Penalties

Effect of payment

39.12 (1) If the person who is named in a notice of violation pays, within the prescribed time and in the prescribed manner that are specified in the notice, the amount of the penalty — or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty — set out in the notice,

  • (a) the person is deemed to have committed the violation to which the amount paid relates;
  • (b) the Minister shall accept the amount paid as complete satisfaction of the penalty; and
  • (c) the proceedings commenced in respect of the violation under section 39.11 are ended.

Alternatives to payment

(2) Instead of paying the penalty or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty, the person who is named in the notice may, within the prescribed time and in the prescribed manner that are specified in the notice, request a review by the Tribunal of the acts or omissions that constitute the alleged violation or of the amount of the penalty, as the case may be.

Deeming

(3) If the person who is named in the notice does not pay the penalty or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty, within the prescribed time and in the prescribed manner and does not exercise the right referred to in subsection (2) within the prescribed time and in the prescribed manner, the person is deemed to have committed the violation identified in the notice.

Review by Tribunal

Review — violation

39.13 (1) After completing a review requested under subsection 39.12(2) with respect to the acts or omissions that constitute the alleged violation identified in the notice of violation, the Tribunal shall determine whether the person who is named in the notice committed the violation and, if the Tribunal determines that the person did so but considers that the amount of the penalty for the violation was not established in accordance with the regulations, the Tribunal shall correct that amount and cause the person to be provided with a notice of the Tribunal’s decision.

Review — penalty

(2) After completing a review requested under subsection 39.12(2) with respect to the amount of the penalty set out in the notice of violation, the Tribunal shall determine whether the amount of the penalty was established in accordance with the regulations and, if the Tribunal determines that it was not, the Tribunal shall correct that amount and cause the person to be provided with a notice of the Tribunal’s decision.

Payment

(3) The person who is provided with a notice of the Tribunal’s decision is liable to pay the amount of the penalty that is set out in it within the prescribed time and in the prescribed manner that are specified in the notice.

Effect of payment

(4) If the person pays the amount of the penalty that is set out in the notice of the Tribunal’s decision within the prescribed time and in the prescribed manner that are specified in the notice,

  • (a) the Tribunal shall accept the amount as complete satisfaction of the penalty; and

     

  • (b) the proceedings commenced in respect of the violation under section 39.11 are ended.

     

Right of appeal

39.131 (1) Within 30 days after a decision is made under subsection 39.13(1) or (2), the Minister or the person to whom it applies may appeal from the decision to the Tribunal.

Loss of right of appeal

(2) A party that does not appear at a review hearing is not entitled to appeal a decision, unless they establish that there was sufficient reason to justify their absence.

Disposition of appeal

(3) The appeal panel of the Tribunal assigned to hear an appeal may dispose of the appeal by dismissing it or by allowing it and, in allowing the appeal, the panel may substitute its own decision for the decision under appeal.

Notice

(4) If the appeal panel finds that a person has committed a violation, the panel must without delay inform the person and the Minister of its decision and of the amount determined by the panel to be payable to the Tribunal by or on behalf of the person in respect of the violation and the time within which it must be paid.

Recovery of Debts

 

Debts to Her Majesty

39.14 (1) The following amounts are debts due to Her Majesty in right of Canada that may be recovered in the Federal Court:

  • (a) the amount of a penalty set out in a notice of violation, beginning on the day on which it is required to be paid in accordance with the notice, unless a request is made to have the Tribunal review the acts or omissions that constitute the violation or the amount of the penalty, as the case may be;
  • (b) the amount of a penalty set out in the notice of the Tribunal’s decision made under subsection 39.13(1) or (2) or 39.131(4), beginning on the day specified in the decision; and
  • (c) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in paragraph (a) or (b).

Limitation period or prescription

(2) Proceedings to recover such a debt may be commenced no later than five years after the debt becomes payable.

Debt final

(3) The debt is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 39.12, 39.13 and 39.131.

Certificate of default

39.15 (1) The Minister may issue a certificate certifying the unpaid amount of any debt referred to in subsection 39.14(1).

Effect of registration

(2) Registration of the certificate in the Federal Court has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.

Rules of Law About Violations

Violations not offences

39.16 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.

Due diligence defence

39.17 (1) A person shall not be found to be liable for a violation if they establish that they exercised due diligence to prevent the commission of the violation.

Common law principles

(2) Every rule and principle of the common law that renders any circumstance a justification or an excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

Burden of proof

39.18 (1) The Minister has the burden of establishing that a person who is named in a notice of violation has committed the violation.

Person not compelled to testify

(2) A person who is named in a notice of violation is not required to give evidence in any proceedings before the Tribunal.

Offences by corporate officers, etc.

39.19 If a person other than an individual commits a violation under this Act, any of the person’s officers, directors and agents or mandataries who directed, authorized, assented to or acquiesced or participated in the commission of the violation is a party to and liable for the violation, whether or not the person who actually committed it is proceeded against in accordance with this Act.

Vicarious liability — acts of employees, agents and mandataries

39.2 A person is liable for a violation that is committed by that person’s employee or agent or mandatary who is acting in the course of the employee’s employment or within the scope of the agent or mandatary’s authority, whether or not the employee or agent or mandatary who actually committed the violation is identified or proceeded against in accordance with this Act.

Continuing violation

39.21 A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued.

Other Provisions

Evidence

39.22 In any proceeding for a violation, a notice of violation purporting to be issued under this Act is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.

Limitation period or prescription

39.23 Proceedings in respect of a violation may be commenced no later than two years after the day on which a designated person becomes aware of the acts or omissions that constitute the alleged violation.

Certification

39.24 A document appearing to have been issued by the Minister or a designated person and certifying the day on which the acts or omissions that constitute the alleged violation became known to a designated person is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof that the designated person became aware of the acts or omissions on that day.

Information may be made public

39.25 The Minister may make public the name and business address of a person who is deemed to have committed a violation or who was determined to have committed a violation, the acts or omissions and provisions at issue, and the amount payable as a result, if any.

How act or omission may be proceeded with

39.26 If an act or omission may be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.

Offences and Punishment

Offence

40 (1) Every person is guilty of an offence, if the person

  • (a) contravenes section 3, subsection 4(1) or (2), 5(1) or 7(12), section 8, subsection 10(1), 10.1(2), 10.2(1) or (2), 10.3(1) or 15(1), section 21, 22, 23 or 35 or subsection 37(1) or (2);
  • (b) contravenes an order given under paragraph 11(2)(a), (b) or (d), subsection 13(1) or (2), 15(3), 15.1(1) or 16(1) or paragraph 25.1(1)(a), (b), (d) or (e);
  • (c) does not take the measures required under subsection 10.3(2) or paragraph 15(2)(a) or (b);
  • (f) contravenes a regulation or order made under section 28; or
  • (g) contravenes an interim order made under section 32.

Penalties

(1.1) Every person who is guilty of an offence under subsection (1) is liable, on summary conviction,

  • (a) in the case of an individual,
    • (i) for a first offence, to a fine of not more than $100,000, and
    • (ii) for a second or subsequent offence, to a fine of, not more than $200,000, or to imprisonment for a term not exceeding six months, or to both; and
  • (b) in the case of a corporation,
    • (i) for a first offence, to a fine of not more than $500,000, and
    • (ii) for a second or subsequent offence, to a fine of not more than $1,000,000.

Vessel liable for fine

(2) If any materials referred to in section 22 are thrown from or deposited by a vessel and a conviction is obtained for that activity, the vessel is liable for any fine that is imposed and may be detained by any port warden or the chief officer of customs at any port until the fine is paid.

Continuing offence

(3) If the offence under subsection (1) is committed or continued on more than one day, the person who commits it is liable to be convicted for a separate offence for each day on which it is committed or continued.

Officers, etc., of corporations

(4) If a corporation commits an offence under this Act, any officer, director or 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 liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.

Duty to ensure compliance

(5) Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with this Act.

Vicarious liability — acts of employees, agents and mandataries

(6) A person is liable for an offence that is committed by that person’s employee or agent or mandatary who is acting in the course of the employee’s employment or within the scope of the agent or mandatary’s authority, whether or not the employee or agent or mandatary who actually committed the offence is identified or proceeded against in accordance with this Act.

Due diligence defence

(7) A person is not to be found guilty of an offence under subsection (1), other than for a contravention of subsection 37(1) or (2), if they establish that they exercised due diligence to prevent the commission of the offence.

Limitation period or prescription

41 Proceedings in respect of an offence under this Act may be commenced no later than five years after the day on which a designated person becomes aware of the acts or omissions that constitute the alleged offence.

Certification

42 A document appearing to have been issued by the Minister or a designated person and certifying the day on which the acts or omissions that constitute the alleged offence became known to a designated person is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof that the designated person became aware of the acts or omissions on that day.

Orders of court

43 If a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order imposing any one or more of the following prohibitions, directions or requirements on the person:

  • (a) a prohibition from doing any act or engaging in any activity that may, in the opinion of the court, result in the continuation or repetition of the offence;
  • (b) a direction to publish, in any manner the court considers appropriate, the facts relating to the commission of the offence;
  • (c) a direction to pay the Minister an amount of money as compensation, in whole or in part, for the cost of any remedial or preventive action taken by or caused to be taken on behalf of the Minister as a result of the commission of the offence;
  • (d) a direction to perform community service in accordance with any reasonable conditions that may be specified in the order;
  • (e) a direction to post a bond or provide surety or pay into court an amount of money the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement mentioned in this section;
  • (f) a direction to submit to the Minister, on application by the Minister within three years after the date of the conviction, any information respecting the activities of the person that the court considers appropriate in the circumstances; and
  • (g) a requirement to comply with any other conditions that the court considers appropriate for securing the person’s good conduct and for preventing the person from repeating the offence or committing other offences under this Act.

Forfeiture

44 (1) If a person is found guilty of an offence, the court may, in addition to any punishment imposed, order that any seized thing under this Act, or any proceeds of its disposition, be forfeited to Her Majesty in right of Canada.

Return if forfeiture not ordered

(2) If the court does not order the forfeiture, the seized thing or the proceeds of its disposition must be returned or paid to its owner.

Retention or disposition

45 If a fine is imposed on a person convicted of an offence, any seized thing, or any proceeds of its disposition, may be retained until the fine is paid, or the thing may be disposed of and the proceeds applied, in whole or in part, in payment of the fine.

Reporting of alleged contraventions

46 (1) An individual who has reasonable grounds to believe that a person has contravened or intends to contravene a provision of this Act or the regulations may notify the Minister of the particulars of the matter and may request that their identity be kept confidential with respect to the notification.

Confidentiality

(2) The identity of an individual to whom the Minister has provided an assurance of confidentiality may be disclosed by the Minister only in accordance with the Privacy Act.

Review

Review of Act

47 (1) A review of the provisions and the operation of this Act must be completed by the Minister before the end of the fifth year after the day on which this section comes into force.

Tabling of report

(2) The Minister must cause a report of the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report has been completed.

The following provides the proposed sections of Bill C-69 on Transitional and Coming into Force Provisions as they relate to the Canadian Navigable Waters Act:

74 The Schedule to the Act is amended by replacing the references after the heading “SCHEDULE” with the following:

(Section 3, subsections 4(1) and (3), 5(1) and 6(1), section 8, subsections 9(1), 10(1), 12(1), 13(1), 15(1), 16(1), 17(1) and 19(1), paragraphs 28(1)(e) and (2)(b) and (c) and subsections 29(1) to (3))

75 The Schedule to the Act is amended by replacing the references after the heading “SCHEDULE” with the following:

(Paragraph 5(1)(b) and subsections 10(1) and (2) and 29(1) to (3))

Transitional provisions

Deemed approval

76 (1) A work is deemed to have been approved under section 7 of the Canadian Navigable Waters Act, as enacted by section 49 of this Act, if it was or was deemed to be

  • (a) approved under section 6 of the Navigation Protection Act, as it read immediately before the coming into force of section 46 of this Act; or
  • (b) permitted under section 9 of the Navigation Protection Act, as it read immediately before the coming into force of section 46 of this Act.

Terms and conditions

(2) Any term or condition attached to an approval under section 6 of the Navigation Protection Act as it read immediately before the coming into force of section 46 of this Act — or imposed under section 9 of that Act as it read at that time— remains in effect.

Validity period of approval

(3) Despite subsection 332(2) of the Jobs and Growth Act, 2012, a term or condition relating to a validity period that was imposed on an approval granted under the Navigable Waters Protection Act before April 1, 2014 is of no force or effect if the validity period in question had not expired before that date.

Minor works

77 (1) A work is deemed to be validly constructed or placed in accordance with section 4 of the Canadian Navigable Waters Act, as enacted by section 49 of this Act, if it was, or was deemed to be, validly constructed or placed in accordance with section 10 of the Navigation Protection Act, as it read immediately before the coming into force of section 46 of this Act.

Deemed designation

(2) Any work designated or deemed to have been designated as a minor work under paragraph 28(2)(a) of the Navigation Protection Act, as it read immediately before the coming into force of section 46 of this Act, is deemed to be designated as a minor work under paragraph 28(2)(a) of the Canadian Navigable Waters Act until an order is made under that paragraph.

Terms and conditions

(3) Every term and condition imposed, or deemed to have been imposed, under paragraph 28(2)(c) of the Navigation Protection Act, as it read immediately before the coming into force of section 46 of this Act, with respect to the minor works referred to in subsection (1), is deemed to be imposed under paragraph 28(2)(c) of the Canadian Navigable Waters Act until an order is made under that paragraph.

Navigable waters not listed in the schedule

78 For the purposes of the Canadian Navigable Waters Act, any work that is referred to in subsection 332(3) or (4) of the Jobs and Growth Act, 2012 and that was deemed to be constructed or placed in, on, over, under, through or across a navigable water listed in the schedule to the Navigation Protection Act in accordance with subsection 332(5) of the Jobs and Growth Act, 2012 is not constructed or placed in, on, over, under, through or across a navigable water listed in the schedule to the Canadian Navigable Waters Act.

Validly constructed or placed

79 A work that was or was deemed to be validly constructed or placed under the Navigation Protection Act, as it read immediately before the coming into force of section 46 of this Act, remains validly constructed or placed under the Canadian Navigable Waters Act.

Notice or application not decided

80 (1) Every notice of a proposed work given under subsection 5(1) of the Navigation Protection Act, as it read immediately before the coming into force of section 46 of this Act, and every application for an approval of a work submitted under subsection 6(1) of that Act, as it read immediately before that coming into force, that has not been decided before that coming into force is deemed to be an application for an approval made under subsection 5(1) of the Canadian Navigable Waters Act.

Request not granted

(2) Every request made under subsection 4(1) of the Navigation Protection Act, as it read immediately before the coming into force of section 2 of this Act, that has not been accepted before that coming into force is deemed to be an application for an approval made under paragraph 10(1)(a) of the Canadian Navigable Waters Act.

Coming into Force

Order in Council

196 (1) The provisions of this Act, other than sections 2 to 8, subsection 47(4), sections 55 and 60, subsection 61(5) and sections 62, 74 and 189 to 195, come into force on a day to be fixed by order of the Governor in Council.

Order in council

(2) Subsections 2(1) and (3), 3(1), 4(1) and 5(1), section 6 and subsections 8(1) and (3) come into force on a day to be fixed by order of the Governor in Council that is not earlier than one day after the day referred to in subsection (1).

Order in council

(3) Subsections 2(2) and (4), 3(2), 4(2) and 5(2), section 7 and subsections 8(2) and (4) come into force on a day to be fixed by order of the Governor in Council that is not earlier than one day after the day referred to in subsection (1).

Order in council

(4) Section 60 and subsection 61(5) come into force on a day to be fixed by order of the Governor in Council that is not earlier than one day after the day referred to in subsection (1).

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