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Arctic Waters Pollution Prevention Act
Arctic Waters Pollution Prevention ActAn Act to prevent pollution of areas of the arctic waters adjacent to the mainland and islands of the Canadian arctic PreambleWhereas Parliament recognizes that recent developments in relation to the exploitation of the natural resources of arctic areas, including the natural resources of the Canadian arctic, and the transportation of those resources to the markets of the world are of potentially great significance to international trade and commerce and to the economy of Canada in particular; And whereas Parliament at the same time recognizes and is determined to fulfil its obligation to see that the natural resources of the Canadian arctic are developed and exploited and the arctic waters adjacent to the mainland and islands of the Canadian arctic are navigated only in a manner that takes cognizance of Canada's responsibility for the welfare of the Inuit and other inhabitants of the Canadian arctic and the preservation of the peculiar ecological balance that now exists in the water, ice and land areas of the Canadian arctic; Now therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLEShort Title1. This Act may be cited as the Arctic Waters Pollution Prevention Act. INTERPRETATIONDefinitions2. In this Act, "analyst" «analyste» "analyst" means a person designated as an analyst pursuant to the Canada Water Act, or Northwest Territories Waters Act;
"arctic waters" «eaux arctiques» "arctic waters" means the waters adjacent to the mainland and islands of the Canadian arctic within the area enclosed by the sixtieth parallel of north latitude, the one hundred and forty-first meridian of west longitude and a line measured seaward from the nearest Canadian land a distance of one hundred nautical miles, except that in the area between the islands of the Canadian arctic and Greenland, where the line of equidistance between the islands of the Canadian arctic and Greenland is less than one hundred nautical miles from the nearest Canadian land, that line shall be substituted for the line measured seaward one hundred nautical miles from the nearest Canadian land;
"ice-breaker" «brise-glace» "ice-breaker" means a ship specially designed and constructed for the purpose of assisting the passage of other ships through ice;
"owner" «propriétaire» "owner", in relation to a ship, includes any person having for the time being, either by law or by contract, the same rights as the owner of the ship with respect to the possession and use thereof;
"pilot" «pilote» "pilot" means a person licensed as a pilot pursuant to the Pilotage Act;
"pollution prevention officer" «fonctionnaire compétent» "pollution prevention officer" means a person designated as a pollution prevention officer pursuant to section 14;
"ship" «navire» "ship" includes any description of vessel or boat used or designed for use in navigation without regard to method or lack of propulsion;
"shipping safety control zone" «zone de contrôle de la sécurité de la navigation» "shipping safety control zone" means an area of the arctic waters prescribed as a shipping safety control zone by an order made under section 11;
"waste" «déchet» "waste" means
and without limiting the generality of the foregoing, includes anything that, for the purposes of the Canada Water Act, is deemed to be waste. APPLICATION OF ACTInconsistency with Part 6 of Marine Liability Act2.1 In the event of an inconsistency between the provisions of this Act, or any regulation made under this Act, and the provisions of Part 6 of the Marine Liability Act, the provisions of that Part prevail to the extent of the inconsistency. Application to arctic waters3. (1) Except where otherwise provided, this Act applies to the arctic waters. Adjacent waters included in arctic waters(2) In so far as this Act applies to or in respect of any person described in paragraph 6(1)(a), the expression "arctic waters" includes all the waters described in the definition of that expression in section 2 and all waters adjacent thereto lying north of the sixtieth parallel of north latitude, the natural resources of whose subjacent submarine areas Her Majesty in right of Canada has the right to dispose of or exploit, whether the waters so described or those adjacent waters are in a frozen or liquid state, but does not include inland waters. Incorporation as amended from time to time 3.1 (1) Regulations made under this Act incorporating standards by reference may incorporate them as amended from time to time. For greater certainty only (2) Subsection (1) is for greater certainty and does not limit any authority to make regulations incorporating material by reference that exists apart from it. DEPOSIT OF WASTEProhibition4. (1) Except as authorized by regulations made under this section, no person or ship shall deposit or permit the deposit of waste of any type in the arctic waters or in any place on the mainland or islands of the Canadian arctic under any conditions where the waste or any other waste that results from the deposit of the waste may enter the arctic waters. Exception(2) Subsection (1) does not apply to the deposit of waste in waters that form part of a water quality management area designated pursuant to the Canada Water Act if the waste so deposited is of a type and quantity and is deposited under conditions authorized by regulations made under paragraph 18(2)(a) of that Act with respect to that water quality management area. Regulations(3) The Governor in Council may make regulations for the purposes of this section prescribing
Report of deposit of waste or danger thereof5. (1) Any person who
shall forthwith report the deposit of waste or the accident or other occurrence to a pollution prevention officer at such location and in such manner as may be prescribed by the Governor in Council. Report by master of ship(2) The master of any ship that has deposited waste in contravention of subsection 4(1), or that is in distress and for that reason is in danger of causing any deposit of waste described in that subsection otherwise than of a type, in a quantity and under conditions prescribed by regulations made under section 4, shall forthwith report the deposit of waste or the condition of distress to a pollution prevention officer at such location and in such manner as may be prescribed by the Governor in Council. Civil liability resulting from deposit of waste6. (1) The following persons, namely,
are respectively liable and, in the case of the owner of a ship and the owners of the cargo thereof, are jointly and severally liable, up to the amount determined in the manner prescribed by regulations made under section 9 in respect of the activity or undertaking so engaged in or carried on or in respect of that ship, as the case may be, for costs, expenses and loss or damage described in subsection (2). Extent of liability(2) Liability under subsection (1) is
resulting from any deposit of waste described in subsection 4(1) that is caused by or is otherwise attributable to the activity, undertaking or ship, as the case may be, referred to in subsection (1). Costs and expenses of Her Majesty(3) Where the Governor in Council directs any action to be taken by or on behalf of Her Majesty in right of Canada to repair or remedy any condition that results from a deposit of waste described in subsection (2), or to reduce or mitigate any damage to or destruction of life or property that results or may reasonably be expected to result from such a deposit of waste, the costs and expenses of and incidental to the taking of that action, to the extent that those costs and expenses can be established to have been reasonably incurred in the circumstances, are, subject to this section, recoverable by Her Majesty in right of Canada from the person or persons described in paragraph (1)(a), (b) or (c), with costs, in proceedings brought or taken therefor in the name of Her Majesty. Proceedings for recovery of claims(4) All claims pursuant to this section against a person or persons described in paragraph (1)(a), (b) or (c) may be sued for and recovered in any court of competent jurisdiction in Canada, and all those claims shall rank
up to the limit of the amount determined in the manner prescribed by regulations made under section 9 in respect of the activity or undertaking engaged in or carried on by the person or persons against whom the claims are made, or in respect of the ship of which any such person is the owner or of all or part of whose cargo any such person is the owner. Limitation period(5) No proceedings in respect of a claim pursuant to this section shall be commenced after two years from the time when the deposit of waste in respect of which the proceedings are brought or taken occurred or first occurred, as the case may be, or could reasonably be expected to have become known to those affected thereby. Nature and limitation of liability7. (1) The liability of any person pursuant to section 6 is absolute and does not depend on proof of fault or negligence, except that no person is liable pursuant to that section for any costs, expenses or actual loss or damage incurred by another person whose conduct caused any deposit of waste described in subsection 6(2), or whose conduct contributed to any such deposit of waste, to the degree to which that other person's conduct contributed thereto. Construction of reference to conduct(2) For the purposes of subsection (1), a reference to any conduct of "another person" includes any wrongful act or omission by that other person or by any person for whose wrongful act or omission that other person is by law responsible. Prohibited construction(3) Nothing in this Act shall be construed as limiting or restricting any right of recourse or indemnity that a person liable pursuant to section 6 may have against any other person. Limitation on liability of cargo owner(4) Notwithstanding anything in this Act, no person is liable pursuant to section 6, either alone or jointly and severally with one or more other persons, by reason only that the person is the owner of all or any part of the cargo of a ship, if the person can establish that the cargo or that part thereof is of such a nature, or is of such a nature and is carried in such a quantity, that, if it and any other cargo of the same nature that is carried by that ship were deposited by that ship in the arctic waters, the deposit would not constitute a contravention of subsection 4(1). Evidence of financial responsibility8. (1) The Governor in Council may require
to provide evidence of financial responsibility, in the form of insurance or an indemnity bond satisfactory to the Governor in Council, or in any other form satisfactory to the Governor in Council, in an amount determined in the manner prescribed by regulations made under section 9. Persons entitled to claim against insurance or bond(2) Evidence of financial responsibility in the form of insurance or an indemnity bond shall be in a form that will enable recovery, directly from the proceeds of the insurance or bond, by any person entitled pursuant to section 6 to claim against the person or persons giving that evidence. Regulations respecting manner of determining limit of liability9. (1) The Governor in Council may make regulations for the purposes of section 6 prescribing, in respect of any activity or undertaking engaged in or carried on by any person or persons described in paragraph 6(1)(a), (b) or (c), or in respect of any ship of which any such person is the owner or of all or part of whose cargo any such person is the owner, the manner of determining the limit of liability of any such person or persons pursuant to section 6. Matters to be taken into account(2) In the case of the owners of a ship and its cargo, the manner prescribed under subsection (1) shall take into account the size of the ship and the nature and quantity of the cargo carried or to be carried by it. PLANS AND SPECIFICATIONS OF WORKSPlans and specifications to be provided10. (1) Where any person proposes to construct, alter or extend any work described in subsection (2), the Governor in Council may require the person to provide the Governor in Council with a copy of such plans and specifications relating to the work as will enable the Governor in Council to determine whether the deposit of waste that will or is likely to occur if the construction, alteration or extension is carried out in accordance therewith would constitute a contravention of subsection 4(1). Work to which plans and specifications to relate(2) Subsection (1) applies in respect of any work on the mainland or islands of the Canadian arctic or in the arctic waters that, on completion thereof, will form all or part of an undertaking the operation of which will or is likely to result in the deposit of waste of any type in the arctic waters or in any place under any conditions where that waste or any other waste that results from the deposit of that waste may enter the arctic waters. Powers of Governor in Council(3) If, after reviewing any plans and specifications provided to the Governor in Council under subsection (1) and affording to the person who provided those plans and specifications a reasonable opportunity to be heard, the Governor in Council is of the opinion that the deposit of waste that will or is likely to occur if the construction, alteration or extension is carried out in accordance with those plans and specifications would constitute a contravention of subsection 4(1), the Governor in Council may, by order, either
SHIPPING SAFETY CONTROL ZONESPrescription of shipping safety control zones11. (1) Subject to subsection (2), the Governor in Council may, by order, prescribe as a shipping safety control zone any area of the arctic waters that is specified in the order, and may, as the Governor in Council deems necessary, amend any such area. Publication of proposed orders(2) A copy of each order that the Governor in Council proposes to make under subsection (1) shall be published in the Canada Gazette and no order may be made under that subsection, based on any such proposal, except after the expiration of sixty days following publication of proposal in the Canada Gazette. Regulations relating to navigation in shipping safety control zones12. (1) The Governor in Council may make regulations applicable to ships of any class specified therein, prohibiting any ship of that class from navigating within any shipping safety control zone specified therein
Orders exempting ships of foreign powers(2) The Governor in Council may by order exempt from the application of any regulations made under subsection (1) any ship or class of ship that is owned or operated by a sovereign power, other than Canada, where the Governor in Council is satisfied that
Certificates evidencing compliance(3) The Governor in Council may make regulations
Destruction or removal of ships or their contents13. (1) Where the Governor in Council believes on reasonable grounds that waste is being deposited or is likely to be deposited in the arctic waters by a ship that is within those waters and is in distress, stranded, wrecked, sunk or abandoned, the Governor in Council may cause the ship or any cargo or other material on board the ship to be destroyed, if necessary, or to be removed if possible to such place and sold in such manner as the Governor in Council may direct. Application of proceeds of sale(2) The proceeds from the sale of a ship or any cargo or other material pursuant to subsection (1) shall be applied towards meeting the expenses incurred by the Government of Canada in removing and selling the ship, cargo or other material, and any surplus shall be paid to the owner of that ship, cargo or other material. ENFORCEMENTPollution prevention officers14. (1) The Governor in Council may designate any person as a pollution prevention officer with such of the powers set out in sections 15 and 23 as are specified in the certificate of designation of that person. Certificate to be produced(2) A pollution prevention officer shall be furnished with a certificate of his designation specifying the powers set out in sections 15 and 23 that are vested in the officer, and on exercising any such power a pollution prevention officer shall, if so required, produce the certificate to any person in authority who is affected thereby and who requires the officer to do so. Powers of pollution prevention officers15. (1) Subject to subsection (3), a pollution prevention officer may at any reasonable time
Powers in relation to works(2) Subject to subsection (3), a pollution prevention officer may at any reasonable time
Exception where ship or dwelling-place(3) No pollution prevention officer may, pursuant to paragraph (1)(a) or (2)(a), enter a ship, a private dwelling-place or any part of any area, place or premises other than a ship that is designed to be used and is being used as a permanent or temporary private dwelling-place. Powers in relation to ships(4) A pollution prevention officer may
Assistance to pollution prevention officers16. The owner or person in charge of any area, place or premises entered pursuant to subsection 15(1) or (2), the master of any ship boarded pursuant to paragraph 15(4)(a) and every person found in the area, place or premises or on board the ship shall give a pollution prevention officer all reasonable assistance to enable the officer to carry out his duties and functions under this Act and shall furnish the officer with any information he may reasonably require. Obstruction and false statements17. No person shall obstruct or hinder, or knowingly make a false or misleading statement either orally or in writing to, a pollution prevention officer while the officer is engaged in carrying out his duties or functions under this Act. OFFENCES AND PUNISHMENTContravention of subsection 4(1)18. (1) Any person who contravenes subsection 4(1) and any ship that contravenes that subsection is guilty of an offence and liable on summary conviction to a fine not exceeding, in the case of a person, five thousand dollars and, in the case of a ship, one hundred thousand dollars. Continuing offences(2) Where an offence referred to in subsection (1) is committed by a person on more than one day or continued by him for more than one day, it shall be deemed to be a separate offence for each day on which it is committed or continued. Additional offences by persons19. (1) Any person who
is guilty of an offence and liable on summary conviction to a fine not exceeding twenty-five thousand dollars. Additional offences by ships(2) Any ship
is guilty of an offence and liable on summary conviction to a fine not exceeding twenty-five thousand dollars. Contravention of section 17(3) Any person, other than the master of a ship or any person on board a ship, who contravenes section 17 is guilty of an offence punishable on summary conviction. Offence by employee or agent20. (1) In a prosecution of a person for an offence under subsection 18(1), it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of, and that all due diligence to prevent its commission was exercised by, the accused. Proof of offence by ship(2) In a prosecution of a ship for an offence under this Act, it is sufficient proof that the ship has committed the offence to establish that the act or neglect that constitutes the offence was committed by the master of or any person on board the ship, other than a pollution prevention officer or a pilot taken on board in compliance with a regulation made under paragraph 12(1)(b), whether or not the person on board the ship has been identified. Orders and directions deemed given to ship(3) For the purposes of any prosecution of a ship for failing to comply with any order or direction of a pollution prevention officer or pilot, any order given by the officer or any direction given by the pilot to the master or any person on board the ship shall be deemed to have been given to the ship. Certificate of analyst21. (1) Subject to this section, a certificate purporting to be signed by an analyst and stating that the analyst has analyzed or examined a sample submitted by a pollution prevention officer to the analyst and stating the result of the analysis or examination is admissible in evidence in any prosecution for a contravention of subsection 4(1) and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person appearing to have signed the certificate. Attendance of analyst(2) The party against whom a certificate of an analyst is produced pursuant to subsection (1) may, with leave of the court, require the attendance of the analyst for the purposes of cross-examination. Notice(3) No certificate shall be admitted in evidence pursuant to subsection (1) unless the party intending to produce it has given reasonable notice of that intention, together with a copy of the certificate, to the party against whom it is intended to be produced. Jurisdiction22. (1) Where any person or ship is charged with having committed an offence under this Act, any court in Canada that would have had cognizance of the offence if it had been committed by a person within the limits of the ordinary jurisdiction of that court has jurisdiction to try the offence as if it had been so committed. Service on ship and appearance at trial(2) Where a ship is charged with having committed an offence under this Act, the summons may be served by leaving it with the master or any officer of the ship or by posting the summons on a conspicuous part of the ship, and the ship may appear by counsel or agent but, if it does not appear, a summary conviction court may, on proof of service of the summons, proceed ex parte to hold the trial. SEIZURE AND FORFEITURESeizure of ship and cargo23. (1) Where a pollution prevention officer suspects on reasonable grounds that
the officer may, with the consent of the Governor in Council, seize the ship and its cargo anywhere in the arctic waters or elsewhere in the territorial sea or internal or inland waters of Canada. Custody(2) Subject to subsection (3) and sections 24 to 26, a ship and cargo seized under subsection (1) shall be retained in the custody of the pollution prevention officer making the seizure or shall be delivered into the custody of such person as the Governor in Council directs. Perishable goods(3) Where all or any part of a cargo seized under subsection (1) is perishable, the pollution prevention officer or other person having custody of it may sell the cargo or the perishable portion, as the case may be, and the proceeds of the sale shall be paid to the Receiver General or shall be deposited in a bank, or an authorized foreign bank within the meaning of section 2 of the Bank Act, that is not subject to the restrictions and requirements refered to in subsection 524(2) of that Act, in respect of its business in Canada, to the credit of the Receiver General. Court may order forfeiture24. (1) Where a ship is convicted of an offence under this Act, or where the owner of a ship or an owner of all or part of the cargo thereof is convicted of an offence under paragraph 19(1)(b), the convicting court may, if the ship and its cargo were seized under subsection 23(1), in addition to any other penalty imposed, order that the ship and cargo or the ship or its cargo or any part thereof be forfeited and, on the making of the order, the ship and cargo or the ship or its cargo or part thereof are or is forfeited to Her Majesty in right of Canada. Forfeiture of proceeds of sale(2) Where any cargo or part thereof that is ordered to be forfeited under subsection (1) has been sold under subsection 23(3), the proceeds of the sale are, on the making of that order, forfeited to Her Majesty in right of Canada. Redelivery of ship and cargo on bond25. (1) Where a ship and cargo have been seized under subsection 23(1) and proceedings that could result in an order that the ship and cargo be forfeited have been instituted, the court in or before which the proceedings have been instituted may, with the consent of the Governor in Council, order redelivery of the ship and cargo, to the person from whom they were seized, on the giving of security to Her Majesty in right of Canada by bond, with two sureties, in an amount and form satisfactory to the Governor in Council. Seized ship, etc., to be returned unless proceedings instituted(2) Any ship and cargo seized under subsection 23(1) or the proceeds realized from a sale of any perishable cargo under subsection 23(3) shall be returned or paid to the person from whom the ship and cargo were seized within thirty days from the seizure thereof unless, prior to the expiration of the thirty days, proceedings are instituted in respect of an offence alleged to have been committed by the ship against this Act or in respect of an offence under paragraph 19(1)(b) alleged to have been committed by the owner of the ship or an owner of all or part of the cargo thereof. Return if no forfeiture ordered(3) Where a ship and cargo have been seized under subsection 23(1) and proceedings referred to in subsection (2) have been instituted, but the ship and cargo or ship or cargo or part thereof or any proceeds realized from the sale of the cargo or any part thereof are not at the final conclusion of the proceedings ordered to be forfeited, they or it shall, subject to subsection (4), be returned or the proceeds shall be paid to the person from whom the ship and cargo were seized. Exception in case of conviction and fine(4) Where the proceedings referred to in subsection (3) result in a conviction and a fine is imposed,
Disposal of forfeited ship26. Where proceedings referred to in subsection 25(2) are instituted and, at the final conclusion of those proceedings, a ship and cargo or ship or cargo or part thereof are or is ordered to be forfeited, they or it may, subject to section 27, be disposed of as the Governor in Council directs. Protection of persons claiming interest27. (1) The provisions of sections 74 to 77 of the Fisheries Act apply, with such modifications as the circumstances require, in respect of any ship and cargo forfeited under this Act as though the ship and cargo were, respectively, a vessel and goods forfeited under subsection 72(1) of that Act. Reading references in applying Fisheries Act(2) References to "the Minister" in sections 75 and 76 of the Fisheries Act shall, in applying those sections for the purposes of this Act, be read as references to the Governor in Council and the phrase "other than a person convicted of the offence that resulted in the forfeiture or a person in whose possession the vessel, vehicle, article, goods or fish were when seized" shall be deemed to include a reference to the owner of the ship where it is the ship that is convicted of the offence that results in the forfeiture. DELEGATIONDelegation of powers of the Governor in Council28. (1) The Governor in Council may, by order, delegate to any member of the Queen's Privy Council for Canada designated in the order the power and authority to do any act or thing that the Governor in Council is directed or empowered to do under this Act and, on the making of such an order, the provisions of this Act that direct or empower the Governor in Council and to which the order relates shall be read as if the title of the member of the Queen's Privy Council for Canada designated in the order were substituted therein for the expression "the Governor in Council". Limitation(2) This section does not apply to authorize the Governor in Council to delegate any power vested in the Governor in Council under this Act to make regulations, prescribe shipping safety control zones or designate pollution prevention officers and their powers, other than pollution prevention officers with only those powers set out in subsection 15(1) or (2). DISPOSITIONS OF FINESFines to be paid to Receiver General29. All fines imposed pursuant to this Act belong to Her Majesty in right of Canada and shall be paid to the Receiver General. Established by the Revised Statutes of Canada, 1985.CHAPTER A-12. List of amendments
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