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CANADA MARINE ACT
1998, c. 10
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An Act for making the system of Canadian ports competitive,
efficient and commercially oriented, providing for the establishing of port authorities
and the divesting of certain harbours and ports, for the commercialization of the St.
Lawrence Seaway and ferry services and other matters related to maritime trade and
transport and amending the Pilotage Act and amending and repealing other Acts as a
consequence |
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Her Majesty, by and with the advice and consent of the Senate and House of Commons of
Canada, enacts as follows:
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SHORT TITLE
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1. This Act may be cited as the Canada Marine Act.
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INTERPRETATION
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2. (1) The definitions in this subsection apply in
this Act.
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"Agency"
« Office »
"Agency" means the Canadian Transportation Agency
continued by subsection 7(1) of the Canada Transportation Act.
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"federal immovable"
« immeuble fédéral »
"federal immovable" has the same meaning as in section 2
of the Federal Real Property and Federal Immovables Act;
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''federal real property''
« bien réel fédéral »
''federal real property'' has the same meaning as in section
2 of the Federal Real Property and Federal Immovables Act;
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''fees''
« droit »
''fees'' includes harbour dues, berthage and wharfage, as
well as duties, tolls, rates and other charges.
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''goods''
« marchandises »
''goods'' includes all personal property other than ships.
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"Minister''
« ministre »
"Minister'' means the Minister of Transport.
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"owner"
« propriétaire »
"owner" includes
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(b) in the case of goods, the agent, sender, consignee or bailee of the goods,
as well as the carrier of the goods to, on, over or from any property under the
administration or jurisdiction of a port authority or the Minister.
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"person"
« personne »
"person" includes a partnership, an association and a body
corporate.
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"port authority"
« administration portuaire »
"port authority" means a port authority established under
section 8.
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"port facility"
« installations portuaires »
"port facility" means a wharf, pier, breakwater, terminal,
warehouse or other building or work located in, on or adjacent to navigable waters used in
connection with navigation or shipping and includes all land incidental to their use.
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"public port"
« port public »
"public port" means a port designated as a public port
under section 65.
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"public port facility"
« installations portuaires publiques »
"public port facility" means a port facility designated as
a public port facility under section 65.
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"Seaway''
« voie maritime »
"Seaway'' means the deep waterway between the port of
Montreal and the Great Lakes that is constructed and maintained pursuant to the Agreement
between Canada and the United States providing for the development of navigation and power
in the Great Lakes-St. Lawrence Basin, dated March 19, 1941, including the locks, canals
and facilities between the port of Montreal and Lake Erie and generally known as the St.
Lawrence Seaway.
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"ship"
« navire »
"ship" means every description of vessel, boat or craft
designed, used or capable of being used solely or partly for marine navigation, whether
self-propelled or not and without regard to the method of propulsion, and includes a
sea-plane and a raft or boom of logs or lumber.
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(2) Unless a contrary intention appears, words and
expressions used in this Act have the same meaning as in the Canada Business
Corporations Act. |
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ABORIGINAL RIGHTS
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3. For greater certainty, nothing in this Act shall
be construed so as to abrogate or derogate from the application of section 35 of the Constitution
Act, 1982 to existing aboriginal or treaty rights of the aboriginal peoples of Canada.
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NATIONAL MARINE
POLICY
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4. It is hereby declared that the objective of this
Act is to
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(a) implement a National Marine Policy that provides Canada with the marine
infrastructure that it needs and that offers effective support for the achievement of
local, regional and national social and economic objectives and will promote and safeguard
Canada's competitiveness and trade objectives;
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(b) base the marine infrastructure and services on international practices and
approaches that are consistent with those of Canada's major trading partners in order to
foster harmonization of standards among jurisdictions;
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(c) ensure that marine transportation services are organized to satisfy the
needs of users and are available at a reasonable cost to the users;
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(e) provide a high degree of autonomy for local or regional management of
components of the system of services and facilities and be responsive to local needs and
priorities;
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(f) manage the marine infrastructure and services in a commercial manner that
encourages, and takes into account, input from users and the community in which a port or
harbour is located;
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(g) provide for the disposition, by transfer or otherwise, of certain ports and
port facilities; and
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PART 1
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CANADA PORT AUTHORITIES
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Interpretation
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5. The definitions in this section apply in this
Part.
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"airport"
« aéroport »
"airport" means an airport situated in a port.
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"letters patent"
« lettres patentes »
"letters patent" means letters patent as amended by
supplementary letters patent, if any.
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"port"
« port »
"port" means the navigable waters under the jurisdiction
of a port authority and the real property and immovables that the port authority manages,
holds or occupies as set out in the letters patent.
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"user"
« utilisateur »
"user", in respect of a port, means a person that makes
commercial use of, or provides services at, the port.
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Application
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6. (1) This Part applies to every port authority set
out in the schedule and to every port authority for which letters patent of incorporation
are issued or that has been continued under this Part and that has not been dissolved. |
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(2) The Minister may, by order, amend the schedule by adding
to Part 2 of it the names of new port authorities or by removing from the schedule the
names of port authorities that are dissolved. |
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Agent of Her Majesty
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7. (1) Subject to subsection (3), a port authority is
an agent of Her Majesty in right of Canada only for the purposes of engaging in the port
activities referred to in paragraph 28(2)(a). |
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(2) A wholly-owned subsidiary of a port authority is not an
agent of Her Majesty in right of Canada unless, subject to subsection (3),
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(a) it was an agent of Her Majesty in right of Canada on June 10, 1996; and
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(3) A port authority or a wholly-owned subsidiary of a port
authority may not borrow money as an agent of Her Majesty in right of Canada.
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Incorporation
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8. (1) The Minister may issue letters patent of
incorporation that take effect on the date stated in them for a port authority without
share capital for the purpose of operating a particular port in Canada if the Minister is
satisfied that the port
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(a) is, and is likely to remain, financially self-sufficient;
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(2) The letters patent shall set out the following
information:
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(e) the real property and immovables, other than the federal real property and
federal immovables, held or occupied by the port authority;
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(f) the number of directors, between seven and eleven, to be appointed under
section 14, to be chosen as follows:
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(iii) one individual appointed by the province in which the port is situated, and, in
the case of the port of Vancouver, another individual appointed by the Provinces of
Alberta, Saskatchewan and Manitoba acting together, and
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(h) the charge on the gross revenues of the port authority, or the formula for
calculating it, that the port authority shall pay each year to the Minister on the day
fixed by the Minister to maintain its letters patent in good standing;
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(i) the extent to which the port authority and a wholly-owned subsidiary of the
port authority may undertake port activities referred to in paragraph 28(2)(a) and
other activities referred to in paragraph 28(2)(b);
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(j) the maximum term of a lease or licence of federal real property or federal
immovables under the management of the port authority;
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(l) the limits on the power of the port authority to borrow money on the credit
of the port authority for port purposes; and
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(m) any other provision that the Minister considers appropriate to include in
the letters patent and that is not inconsistent with this Act.
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(3) Letters patent are not regulations within the meaning of
the Statutory Instruments Act, but shall be published in the Canada Gazette
and are valid with respect to third parties as of the date of publication.
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(4) Any provisions of letters patent relating to the extent
to which a port authority may undertake activities referred to in paragraph 28(2)(b)
shall be approved by the President of the Treasury Board and the Minister of Finance
before the letters patent are issued.
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(5) Any provisions of letters patent relating to limits on
the power of a port authority to borrow money on the credit of the port authority for port
purposes shall be approved by the Governor in Council before the letters patent are
issued.
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9. The Minister may, on the Minister's own initiative
and after consulting with the board of directors, or at the request of the board of
directors, issue supplementary letters patent amending the letters patent of a port
authority if the Minister is satisfied that the amendment is consistent with this Act, and
the supplementary letters patent take effect on the date stated in them.
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Continuance of Harbour Commissions
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10. (1) If the Minister is satisfied that the
criteria set out in subsection 8(1) are met, the Minister may issue in respect of one or
more harbour commissions established pursuant to the Harbour Commissions Act, The
Hamilton Harbour Commissioners' Act or The Toronto Harbour Commissioners' Act, 1911,
letters patent of continuance as a port authority that set out the information required by
subsection 8(2).
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(2) On the date on which the letters patent of continuance
are issued,
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(b) the letters patent of continuance are deemed to be the letters patent of
incorporation of the port authority;
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(d) the following Acts cease to apply, namely:
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(i) in respect of the Hamilton Port Authority, The Hamilton Harbour Commissioners'
Act, The Hamilton Harbour Commissioners Act, 1951 and The Hamilton Harbour
Commissioners Act, 1957,
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(ii) in respect of the Toronto Port Authority, The Toronto Harbour Commissioners'
Act, 1911 and the Toronto Harbour Commissioners' Act, 1985, and
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(3) The rights and obligations of a port authority that was
one or more harbour commissions immediately before letters patent of continuance were
issued are as follows:
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(a) the corporate name of the port authority is substituted for that of the
harbour commission in every contract, collective agreement, lease, licence, permit or
other document entered into or granted by the harbour commission with regard to the port;
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(b) the management of the federal real property and federal immovables set out
in the letters patent, and any rights related to them, is conferred on the port authority;
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(c) the real property and immovables, other than federal real property and
federal immovables, that the harbour commission occupied or the title to which it held,
whether or not in its own name, and that are set out in the letters patent, and any rights
related to them, become the interest, property and rights of the port authority, as the
case may be;
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(d) the personal property, and any rights related to the property, that the
harbour commission manages, or the title to which it holds, on behalf of Her Majesty in
right of Canada, whether or not in its own name, become the property and rights of the
port authority;
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(e) an existing cause of action, proceeding or claim by or against the harbour
commission or a liability or other obligation of the harbour commission is unaffected
except that any judgment or order is to be satisfied first by the port authority;
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(f) a civil, criminal or administrative action or proceeding pending by or
against the harbour commission may be continued only by or against the port authority; and
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(g) subject to paragraph (e), a conviction against, or a ruling, order or
judgment in favour of or against, the harbour commission may be enforced only by or
against the port authority.
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11. The commissioners of a harbour commission
continued under subsection 10(1) cease to hold office on the day referred to in section 18
and have no right to claim or receive any compensation, damages, indemnity or other form
of relief from Her Majesty in right of Canada or from any servant or agent of Her Majesty
for ceasing to hold office by virtue of this Part.
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Initial Port Authorities
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12. (1) A port authority set out in an item of Part 1
of the schedule is automatically continued or deemed to be incorporated under section 8 on
the day on which that item comes into force and the Minister shall issue to it letters
patent that set out the information required by subsection 8(2).
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(2) The rights and obligations of a port authority referred
to in subsection (1) that was one or more harbour commissions immediately before the
coming into force of this subsection are governed by subsection 10(3).
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(3) The rights and obligations of a port authority referred
to in subsection (1) that was, immediately before the coming into force of this
subsection, a local port corporation established under the Canada Ports Corporation Act
are as follows:
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(a) the corporate name of the port authority is substituted for that of the
local port corporation in every contract, collective agreement, lease, licence, permit or
other document entered into or granted by the local port corporation, the Canada Ports
Corporation or any of their predecessors in respect of the port;
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(b) the real property and immovables, and any rights related to them, that the
local port corporation administers, or the title to which it holds, on behalf of Her
Majesty in right of Canada, whether or not in its own name, remain the property and rights
of Her Majesty;
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(c) the management of the federal real property and federal immovables set out
in the letters patent, and any rights related to them, is conferred on the port authority;
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(d) the personal property, and any rights related to the property, that the
local port corporation administers, or the title to which it holds, on behalf of Her
Majesty in right of Canada, whether or not in its own name, become the property and rights
of the port authority;
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(e) an existing cause of action, proceeding or claim by or against the local
port corporation or liability or other obligation of the local port corporation is
unaffected except that any judgment or order is to be satisfied first by the port
authority;
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(f) a civil, criminal or administrative action or proceeding pending by or
against the local port corporation may be continued only by or against the port authority;
and
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(g) subject to paragraph (e), a conviction against, or a ruling, order or
judgment in favour of or against, the local port corporation may be enforced only by or
against the port authority.
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(4) The rights and obligations of a port authority referred
to in subsection (1) that was, immediately before the coming into force of this
subsection, a non-corporate port within the meaning of the Canada Ports Corporation Act
are as follows:
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(a) the corporate name of the port authority is substituted for that of the
Canada Ports Corporation or any of its predecessors in every contract, collective
agreement, lease, licence, permit or other document entered into or granted by the Canada
Ports Corporation or any of its predecessors in respect of the port;
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(b) the real property and immovables, and any rights related to them, that form
part of the port and that the Canada Ports Corporation administers, or the title to which
it holds, on behalf of Her Majesty in right of Canada, whether or not in its own name,
remain the property and rights of Her Majesty;
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(c) the management of the federal real property and federal immovables set out
in the letters patent, and any rights related to them, is conferred on the port authority;
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(d) the personal property, and any rights related to the property, that relate
to the port and that the Canada Ports Corporation administers, or the title to which it
holds, on behalf of Her Majesty in right of Canada, whether or not in its own name, become
the property and rights of the port authority;
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(e) an existing cause of action, proceeding or claim by or against the Canada
Ports Corporation in respect of the port or a liability or other obligation of that
Corporation in respect of the port is unaffected except that any judgment or order is to
be satisfied first by the port authority;
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(f) a civil, criminal or administrative action or proceeding pending by or
against the Canada Ports Corporation in respect of the port may be continued only by or
against the port authority; and
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(g) subject to paragraph (e), a conviction against, or a ruling, order or
judgment in favour of or against, the Canada Ports Corporation in respect of the port may
be enforced only by or against the port authority.
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(5) For the purposes of subsection (4), the Minister may fix
the limits of a non-corporate port that is to be managed by a port authority and settle
any question that arises in respect of the property, rights or obligations of the port
authority.
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13. (1) The directors or commissioners of the bodies
that become port authorities under section 12 cease to hold office on the day referred to
in section 18 and have no right to claim or receive any compensation, damages, indemnity
or other form of relief from Her Majesty in right of Canada or from any servant or agent
of Her Majesty for ceasing to hold office by virtue of this Part.
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(2) Neither the port authority nor Her Majesty in right of
Canada is bound by any severance agreement entered into between a predecessor of the port
authority and any of its officers after December 1, 1995.
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Directors
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14. (1) The directors of a port authority shall be
appointed as follows:
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(c) the province or provinces mentioned in the letters patent appoint one or two
individuals as mentioned in the letters patent; and
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(d) the Governor in Council appoints the remaining individuals nominated by the
Minister in consultation with users selected by the Minister or the classes of users
mentioned in the letters patent.
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(2) The directors are appointed to hold office for such term
of not more than three years as will ensure as far as possible the expiration in any one
year of the terms of office of not more than one half of the directors, the terms being
renewable once only.
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(3) No person is eligible to be appointed as a director
within twelve months after the expiration of their term or renewed term.
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(4) The directors are appointed to serve part-time.
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(5) The board of directors shall fix the remuneration of the
directors, the chairperson and the chief executive officer.
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(6) Subject to the letters patent, a majority of the
directors in office constitutes a quorum at any meeting of directors and a quorum of
directors may exercise all the powers of the directors.
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15. (1) The directors of a port authority appointed
under any of paragraphs 14(1)(a) to (c) shall have generally acknowledged
and accepted stature within the transportation industry or the business community.
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(2) The directors of a port authority appointed under
paragraph 14(1)(d) shall have generally acknowledged and accepted stature within
the transportation industry or the business community and relevant knowledge and extensive
experience related to the management of a business, to the operation of a port or to
maritime trade.
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16. The following individuals may not be directors of
a port authority:
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(a) an individual who is a mayor, councillor, officer or employee of a
municipality mentioned in the letters patent;
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(b) an individual who is a member of the legislature of a province, or an
officer or employee of the public service or of a Crown corporation of a province,
mentioned in the letters patent;
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(c) a Senator or a member of Parliament or an officer or
employee of the federal public administration, including an officer or
employee in a federal Crown corporation;
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(d) an individual who is not a resident Canadian, as defined in subsection 2(1)
of the Canada Business Corporations Act;
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(e) an individual who is a director, officer or employee of a person who is a
user of the port;
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17. The board of directors shall elect a chairperson
from among their number for a term not exceeding two years, the term being renewable.
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18. Subject to subsection 19(1), where a port
authority is continued under section 10 or 12, the directors or commissioners of the
former local port corporation or harbour commission, respectively, continue to hold office
as provisional directors of the port authority until the earlier of the day on which they
are replaced or removed and ninety days after the date of the continuance.
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19. (1) A director of a port authority ceases to hold
office when the director
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(b) is removed for cause by the authority that made the appointment, namely, the
Governor in Council, the municipalities, the province or provinces or the other directors,
as the case may be; or
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(2) The resignation of a director becomes effective on the
day on which a written resignation is received by the port authority or on the day
specified in the resignation, whichever is later.
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20. The board of directors is responsible for the
management of the activities of a port authority.
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21. (1) The board of directors of a port authority
shall appoint a chief executive officer and may appoint other officers that they consider
appropriate.
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(2) The chief executive officer is not a member of the board
of directors.
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(3) A port authority may appoint the personnel that it
considers necessary for the operation of the port.
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22. (1) Every director and officer of a port
authority shall, in exercising powers and discharging duties,
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(b) exercise the care, diligence and skill that a reasonably prudent person
would exercise in comparable circumstances.
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(2) Every director and officer of a port authority shall
comply with this Part, the regulations made under subsection 27(1) and the letters patent
and by-laws of the port authority.
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(3) No provision in a contract or resolution relieves a
director or officer from the duty to act in accordance with this Part, the regulations
made under subsection 27(1), the letters patent or the by-laws or relieves them from
liability for a breach of any of them.
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Legal Regime Applicable to Port Authorities
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23. (1) If a port authority or a wholly-owned
subsidiary of a port authority is acting as agent of Her Majesty in right of Canada, the
port authority or subsidiary must fulfil or satisfy an obligation or liability in respect
of the port authority or subsidiary, as the case may be, arising from its exercise of, or
its failure to exercise, a power or right or arising by operation of law. Her Majesty is
not responsible for fulfilment or satisfaction of the obligation or liability, except that
if a judgment or decision is rendered by a court of competent jurisdiction in respect of
the obligation or liability, Her Majesty is responsible for satisfying the judgment or
decision to the extent that it remains unsatisfied by the port authority or subsidiary at
least thirty days after the judgment or decision becomes final.
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(2) If a port authority or a wholly-owned subsidiary of a
port authority is not acting as agent of Her Majesty in right of Canada, an obligation or
liability in respect of the port authority or subsidiary, as the case may be, arising from
its exercise of, or its failure to exercise, a power or right or arising by operation of
law is an obligation or liability of the port authority or subsidiary, as the case may be,
and not an obligation or liability of Her Majesty.
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(3) A port authority and a wholly-owned subsidiary of a port
authority shall fully maintain in good standing at all times the insurance coverage
required by any regulations made under paragraph 27(1)(e).
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24. The Financial Administration Act, other
than subsection 9(3) and sections 155, 155.1 and 156, does not apply to a port authority
or a wholly-owned subsidiary of a port authority.
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25. No payment to a port authority or a wholly-owned
subsidiary of a port authority may be made under an appropriation by Parliament to enable
the port authority or subsidiary to discharge an obligation or liability. This section
applies
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(a) even if the port authority or subsidiary is an agent of Her Majesty in right
of Canada as provided under section 7; and
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(b) notwithstanding any authority given under any other Act, other than an
authority given under the Emergencies Act, any other Act in respect of emergencies
or any Act of general application providing for grants, or other than an authority for the
funding of Her Majesty's obligations under an agreement in existence at the time of the
coming into force of this paragraph.
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26. No guarantee may be given under the authority of
Parliament by or on behalf of Her Majesty for the discharge of an obligation or liability
of a port authority or a wholly-owned subsidiary of a port authority. This section applies
even if the port authority or subsidiary is an agent of Her Majesty in right of Canada as
provided under section 7.
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27. (1) For the purposes of this Part, the Governor
in Council may make regulations for the corporate management and control of port
authorities or wholly-owned subsidiaries of port authorities, including regulations
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(a) adapting any provision of the Canada Business Corporations Act and
any regulations made under that Act, including provisions imposing punishment, for the
purpose of applying those provisions as adapted to port authorities;
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(b) prescribing, for the purposes of section 32, categories of investments in
which a port authority may invest;
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(c) respecting the preparation, form and content of the documents referred to in
paragraphs 37(2)(a) to (d) and the information referred to in subsection
37(3);
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(d) prescribing the remuneration threshold for the purposes of paragraph 37(3)(c)
and the method of determining that threshold;
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(e) respecting the insurance coverage that a port authority and a wholly-owned
subsidiary of a port authority must maintain; and
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(f) respecting the imposition of obligations on a port authority or a
wholly-owned subsidiary of a port authority, as an agent of Her Majesty in right of
Canada, including any requirements for a port authority or a wholly-owned subsidiary of a
port authority to indemnify Her Majesty.
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(2) A regulation made under subsection (1) may apply to only
one port authority or wholly-owned subsidiary of a port authority.
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(3) A regulation made under subsection (1) may be made
binding on Her Majesty in right of Canada or a province.
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Capacity and Powers
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28. (1) A port authority is incorporated for the
purpose of operating the port in respect of which its letters patent are issued and, for
that purpose and for the purposes of this Act, has the powers of a natural person.
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(2) The power of a port authority to operate a port is
limited to the power to engage in
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(a) port activities related to shipping, navigation, transportation of
passengers and goods, handling of goods and storage of goods, to the extent that those
activities are specified in the letters patent; and
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(b) other activities that are deemed in the letters patent to be necessary to
support port operations.
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(3) The activities that a port authority may engage in under
paragraph (2)(b) may be carried on by the port authority directly or through a
wholly-owned subsidiary of the port authority. The port authority and the subsidiary are
not agents of Her Majesty in right of Canada for the purpose of engaging in those
activities.
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(4) A port authority shall not carry on any activity or
exercise any power that it is restricted by its letters patent from carrying on or
exercising, nor shall it exercise any of its powers in a manner contrary to its letters
patent or this Act.
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(5) A port authority or wholly-owned subsidiary of a port
authority that enters into a contract other than as agent of Her Majesty in right of
Canada shall do so in its own name. It shall expressly state in the contract that it is
entering into the contract on its own behalf and not as agent of Her Majesty in right of
Canada. For greater certainty, the contracts to which this subsection applies include a
contract for the borrowing of money.
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(6) The directors of a port authority shall take all
necessary measures to ensure
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(a) that the port authority and any wholly-owned subsidiary of the port
authority comply with subsection (5); and
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(b) that any subcontract arising directly or indirectly from a contract to which
subsection (5) applies expressly states that the port authority or subsidiary, as the case
may be, enters into the contract on its own behalf and not as agent of Her Majesty in
right of Canada.
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(7) If a port authority or a wholly-owned subsidiary of a
port authority fails to comply with subsection (5), or the directors of a port authority
fail to comply with subsection (6), the Minister of Finance, on the recommendation of the
Minister of Transport, may impose any limitations that the Minister of Finance considers
to be in the public interest on the power of the port authority or subsidiary to borrow
money, including limitations on the time and terms and conditions of any borrowing.
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(8) For greater certainty, the imposition under subsection
(7) of limitations on the power of a port authority or subsidiary to borrow money or the
imposition of other limitations or controls by the Minister, any other member of the
Queen's Privy Council for Canada or the Governor in Council, through the issuance of
letters patent, the granting of any approval or any other means, does not expand the
extent, if any, to which the port authority or subsidiary is an agent of Her Majesty in
right of Canada beyond that described in section 7.
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(9) A port authority, or a wholly-owned subsidiary of a port
authority, that enters into a contract as an agent of Her Majesty in right of Canada is
bound by the contract and is responsible to Her Majesty for the performance of obligations
to other parties under the contract.
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(10) Except for a use authorized under this Act, a port
authority may continue to use any real property or immovables that it manages, holds or
occupies for any purpose for which the real property or immovable was used on June 1, 1996
in the case of a port authority referred to in section 12, or the date of issuance of its
letters patent in any other case, but, if the port authority ceases to use it for that
purpose at any time, the port authority may not reinstitute the use.
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(11) The directors of a port authority shall take all
necessary measures to ensure that its wholly-owned subsidiaries
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(c) do not exercise any power or carry on any activity in a manner contrary to
the letters patent or this Act.
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(12) The Governor in Council may declare that any provision
of this Part that applies only to port authorities applies to a wholly-owned subsidiary of
a port authority. In that case, the provision applies to the subsidiary as if it were a
port authority, with such modifications as the circumstances require.
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(13) A wholly-owned subsidiary of a port authority may
continue to carry on any activity or exercise any power that it carried on or exercised on
December 1, 1995 but, if the subsidiary ceases to carry on the activity or exercise the
power at any time, it may not recommence it unless the activity or power is authorized in
the letters patent.
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(14) Unless the letters patent of a port authority provide
otherwise, the port authority or a wholly-owned subsidiary of the port authority shall not
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(a) cause the incorporation of a corporation whose shares on incorporation would
be held by, on behalf of or in trust for the port authority or subsidiary;
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(b) acquire shares of a corporation to be held on behalf of or in trust for the
port authority or subsidiary;
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29. (1) Subject to its letters patent, to any other
Act and to any regulations made under any other Act, a port authority may
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(a) construct, purchase, lease, operate and maintain railways on lands it
manages, holds or occupies;
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(b) enter into agreements with any person for the maintenance of the railways
referred to in paragraph (a) and for their operation, in a manner that will provide
all railway companies whose lines reach the port with the same facilities for traffic as
those enjoyed by that person; and
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(c) enter into arrangements with any person for facilitating traffic to, from or
within the limits of the port.
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(2) A railway referred to in paragraph (1)(a) is not
subject to Part III of the Canada Transportation Act but the Governor in Council
may make regulations applying any provision of the Railway Safety Act and any
regulations made under that Act to such a railway.
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(3) Subject to its letters patent, to any other Act, to any
regulations made under any other Act and to any agreement with the Government of Canada
that provides otherwise, a port authority that operates an airport shall do so at its own
expense.
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30. Unless the letters patent provide otherwise, the
directors of a port authority may, by resolution, make, amend or repeal by-laws that
regulate the affairs of the port authority or the duties of its officers and employees.
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31. (1) Subject to the letters patent, a port
authority may borrow money on the credit of the port authority for port purposes.
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(2) Unless the letters patent or by-laws of a port authority
provide otherwise, the board of directors may, by resolution, delegate the powers referred
to in subsection (1) to a committee established by the directors.
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(3) Subject to subsection (4), a port authority may not
mortgage, hypothecate, pledge or otherwise create a security interest in the federal real
property or federal immovable that it manages in any way other than to pledge the revenues
of that property.
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(4) A port authority may, if authorized in the letters
patent, create a security interest in fixtures on federal real property and federal
immovables to the same extent as Her Majesty could create such an interest and may,
instead of Her Majesty, execute and deliver the documents required for that purpose.
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(5) For the purposes of subsections (3) and (4), ``security
interest'' means an interest in or charge on property or fixtures mentioned in those
subsections to secure the discharge of an obligation or liability of the port authority.
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(6) A grant under subsection (4) may be effected by any
instrument by which an interest in real property or a right in an immovable may be granted
by a private person under the laws in force in the province in which the federal real
property, federal immovable or fixtures are situated.
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32. A port authority may invest any moneys in its
reserves or any moneys that it does not immediately require in
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(a) debentures, bonds, bankers' acceptances or other debt obligations of or
guaranteed by Her Majesty in right of Canada or any province or municipality in Canada or
any member of the Canadian Payments Association; or
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(b) investments of a category prescribed by regulation by the Governor in
Council for the purposes of this section.
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33. A person who deals with a port authority,
acquires rights from a port authority or directly or indirectly acquires rights relating
to a port authority is deemed to know the contents of the letters patent of the port
authority.
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Annual Meeting
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34. The directors of a port authority shall call an
annual meeting not later than eighteen months after the port authority comes into
existence and subsequently not later than fifteen months after holding the last preceding
annual meeting.
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35. (1) The annual meeting of a port authority shall
be open to the public and held in any of the municipalities where the port is situated, in
premises large enough to accommodate the anticipated attendance.
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(2) A port authority shall, at least thirty days before the
annual meeting, have a notice published in a major newspaper published or distributed in
the municipalities where the port is situated setting out the time and location of the
meeting and specifying that the port authority's financial statements are available to the
public at its registered office.
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(3) At the annual meeting, the board of directors shall
ensure
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(a) that there are available a sufficient number of copies of the most recent
audited annual financial statements of the port authority for the persons present at the
meeting; and
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(b) that the chief executive officer and the directors are available to answer
questions about the operations of the port authority posed by the persons present at the
meeting.
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36. The board of directors of a port authority shall
present at every annual meeting
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(i) the period that ended not more than six months before the annual meeting and that
began on the date the port authority came into existence or, if the port authority has
completed a fiscal year, immediately after the end of the last completed fiscal year, and
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(c) any further information respecting the financial position of the port
authority and its wholly-owned subsidiaries and the results of their operations required
by this Act, any regulations made under this Act, the letters patent or the by-laws.
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Financial Management
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37. (1) A port authority shall make available for
inspection by the public, at its registered office during normal business hours at least
thirty days before the annual meeting, its audited annual financial statements and those
of its wholly-owned subsidiaries for the preceding fiscal year.
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(2) The financial statements shall be prepared in accordance
with generally accepted accounting principles and consist of at least the following:
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(3) The annual financial statements shall set out the total
remuneration paid to each of the following persons in that year by the port authority or
its wholly-owned subsidiary, including any fee, allowance or other benefit:
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(4) A port authority shall submit to the Minister its
audited annual financial statements, and those of its wholly-owned subsidiaries, at least
thirty days before the port authority's annual meeting.
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(5) A port authority shall provide the Minister with such
accounts, budgets, returns, statements, documents, records, books, reports or other
information as the Minister may require, including information about any contingent
liabilities of the port authority or of its wholly-owned subsidiaries.
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38. (1) A port authority shall ensure that, in
respect of itself and its wholly-owned subsidiaries,
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(b) financial and management control and information systems and management
practices are maintained.
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(2) The books, records, systems and practices shall be kept
and maintained in a manner that will provide reasonable assurance that
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(b) the transactions of the port authority are in accordance with this Part and
the letters patent and by-laws of the port authority; and
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(c) the financial, human and physical resources of the port authority are
managed economically and efficiently and the operations of the port authority are carried
out effectively.
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39. A port authority shall annually submit to the
Minister, in respect of itself and each of its wholly-owned subsidiaries, a five-year
business plan containing such information as the Minister may require, including any
material changes in respect of information provided in the previous business plan.
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40. The financial statements and business plan of a
port authority shall be prepared in a form that clearly sets out information about each of
the activities of the port authority and its wholly-owned subsidiaries, with the
information about port activities referred to in paragraph 28(2)(a) set out
separately from the information about other activities referred to in paragraph 28(2)(b).
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Special Examinations
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41. (1) A port authority shall have a special
examination carried out to determine whether the books, records, systems and practices
referred to in subsection 38(1) were, in the period under examination, maintained in a
manner that provided reasonable assurance that they met the requirements of subsection
38(2).
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(2) A special examination shall be carried out at least once
every five years and at any additional times that the Minister may require.
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(3) Before beginning a special examination, the examiner
shall survey the systems and practices of the port authority and submit a plan for the
examination, including a statement of the criteria to be applied, to the audit committee
of the port authority, or if there is no audit committee, to the board of directors, and,
in the case where the Minister has required the special examination to be carried out, to
the Minister.
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(4) Where the examiner and the audit committee or board of
directors disagree about the plan, the Minister may make a final determination with
respect to it.
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(5) The examiner shall, to the extent the examiner considers
it feasible, rely on an internal audit carried out by the port authority.
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42. (1) The examiner shall, on completion of the
special examination, submit a report and a summary report of the findings to the Minister
and to the board of directors.
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(2) The examiner's report shall include
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(a) a statement as to whether in the examiner's opinion, with respect to the
criteria established under subsection 41(3), there is reasonable assurance that there are
no significant deficiencies in the systems and practices examined; and
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(3) A port authority shall, as soon as is practicable after
it receives the summary report, have notice of the summary report published in a major
newspaper published or distributed in the place where the port is situated.
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(4) A port authority shall make the summary report available
for inspection by the public at its registered office during normal business hours.
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43. (1) Subject to subsection (2), a special
examination shall be carried out by the auditor of a port authority.
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(2) Where, in the opinion of the Minister, a person other
than the auditor of a port authority should carry out a special examination, the Minister
may, after consulting with the board of directors appoint another auditor to do it and
may, after again consulting with the board, remove that auditor at any time.
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Property
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44. (1) For the purposes of the Federal Real
Property and Federal Immovables Act, the Minister has the administration of the
federal real property and federal immovables of a port in respect of which letters patent
have been issued to the port authority, other than property the administration of which is
under any other member of the Queen's Privy Council for Canada.
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(2) The Minister may, in the letters patent, give to a port
authority the management of any federal real property or federal immovable that is
administered by
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(b) any other member of the Queen's Privy Council for Canada, if the Minister
has the consent of that other member.
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(3) If the Minister gives the management of any federal real
property or federal immovable to a port authority, the Federal Real Property and
Federal Immovables Act, other than sections 12 to 14 and paragraphs 16(1)(a), (g)
and (i) and (2)(g), does not apply to that property.
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(4) The Surplus Crown Assets Act does not apply to a
port authority.
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(5) If a port authority is of the opinion that any real
property or immovable is no longer required for port purposes, it shall so inform the
Minister.
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(6) A port authority may manage, occupy or hold only the
real property and immovables set out in its letters patent.
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45. (1) Where the Minister has given the management
of any federal real property or federal immovable to a port authority, the port authority
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(b) may retain and use the revenue received in respect of that property for the
purpose of operating the port;
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(2) A civil, criminal or administrative action or proceeding
with respect to any federal real property or federal immovable that a port authority
manages, or any property that it holds, or with respect to any act or omission occurring
on the property, shall be taken by or against the port authority and not by or against the
Crown.
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(3) A port authority may, for the purpose of operating the
port, lease or license any federal real property or federal immovable that it manages,
subject to the limits in the port authority's letters patent on its authority to contract
as agent for Her Majesty in right of Canada. The term of the lease or licence may not be
more than the maximum term that the letters patent set out for such a lease or
licence.
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(3.1) The port authority may exercise the powers under
subsection (3) to the same extent as Her Majesty could exercise those powers and may,
instead of Her Majesty, execute and deliver the documents required for that purpose.
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(4) A lease or licence of any federal real property or
federal immovable may be effected by any instrument by which, under the laws in force in
the province in which the property is situated, real property or immovables may be leased
or a licence may be granted by a private person.
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46. (1) Subject to subsection 45(3), a port authority
may not dispose of any federal real property or federal immovable that it manages but it
may
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(a) without the issuance of supplementary letters patent, grant road allowances
or easements, rights of way or licences for utilities, services or access; and
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(b) to the extent authorized in the letters patent,
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(1.1) The port authority may exercise the powers under
paragraph (1)(a) or (b) to the same extent as Her Majesty could exercise
those powers and may, instead of Her Majesty, execute and deliver the documents required
for that purpose.
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(2) A port authority may dispose of any real property or
immovable that it occupies or holds, other than federal real property or federal
immovables, subject to the issuance of supplementary letters patent, and, without the
issuance of supplementary letters patent, it may grant road allowances or easements,
rights of way or licences for utilities, services or access.
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(3) A grant may be effected by any instrument by which an
interest in real property or a right in an immovable may be granted by a private person
under the laws in force in the province in which the federal real property or federal
immovable is situated.
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47. The Navigable Waters Protection Act does
not apply to a work, within the meaning of that Act, to which regulations made under
section 62 of this Act apply.
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48. (1) A port authority shall, within twelve months
after the issuance of its letters patent, develop a detailed land-use plan that contains
objectives and policies for the physical development of the real property and immovables
that it manages, holds or occupies and that takes into account relevant social, economic
and environmental matters and zoning by-laws that apply to neighbouring lands.
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(2) The land-use plan may
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(a) prohibit the use of some or all of the real property and immovables for, or
except for, certain purposes;
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(c) subject to any regulations made under section 62, regulate the type of
structures or works that may be erected.
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(3) A land-use plan shall not have the effect of preventing
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(a) the use of any real property or immovable existing on the day on which the
land-use plan comes into force for the purpose for which it was used on that day, so long
as it continues to be used for that purpose; or
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(b) the erecting or alteration of a structure or work that was authorized before
the day on which the land-use plan comes into force if the erecting or alteration is
carried out in accordance with the authorization.
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(4) A port authority shall, at least sixty days before the
coming into force of a land-use plan, have notice of the plan published in a major
newspaper published or distributed in the place where the port is situated.
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(5) The notice shall include information as to where a copy
of the plan, including any related documents necessary to understand it, may be obtained
and an invitation to any interested person to make representations to the port authority
with respect to the proposed plan within those sixty days and to attend a public meeting
at a specified time and place.
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(6) After the port authority considers any representations
made by interested persons with respect to a proposed plan, it may adopt the plan.
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(7) The port authority shall have notice of each land-use
plan that it adopts, together with notice of the place at which a copy of the plan may be
obtained, published in a major newspaper published or distributed in the place where the
port is situated.
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(8) A port authority need not comply with subsections (4) to
(7) in respect of a proposed land-use plan that
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(a) has previously been published pursuant to subsection (4), whether or not it
has been changed as a result of representations made pursuant to subsection (5); or
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(9) Land-use plans are not regulations within the meaning of
the Statutory Instruments Act.
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Fees
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49. (1) A port authority may fix fees to be paid in
respect of
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(a) ships, vehicles, aircraft and persons coming into or using the port;
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(b) goods loaded on ships, unloaded from ships or transhipped by water within
the limits of the port or moved across the port; and
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(c) any service provided by the port authority, or any right or privilege
conferred by it, in respect of the port.
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(2) A port authority may fix the interest rate that it
charges on overdue fees.
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(3) The fees fixed by a port authority shall be at a level
that permits it to operate on a self-sustaining financial basis and shall be fair and
reasonable.
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(4) The fees and interest rate may be made binding on Her
Majesty in right of Canada or a province.
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(5) The fees fixed under paragraphs (1)(a) and (b)
do not apply in respect of a Canadian warship, naval auxiliary ship or other ship under
the command of the Canadian Forces, a ship of a visiting force within the meaning of the Visiting
Forces Act or any other ship while it is under the command of the Royal Canadian
Mounted Police.
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(6) A fee that is in force in respect of a port on the
coming into force of this section continues in force for a period ending on the earlier of
the expiration of six months and the date on which it is replaced by a fee fixed under
subsection (1).
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50. (1) A port authority shall not unjustly
discriminate among users or classes of users of the port, give an undue or unreasonable
preference to any user or class of user or subject any user or class of user to an undue
or unreasonable disadvantage.
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(2) It is not unjust discrimination and it is not an undue
nor an unreasonable preference or disadvantage for a port authority to differentiate among
users or classes of users on the basis of the volume or value of goods shipped or on any
other basis that is generally commercially accepted.
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51. (1) Where a port authority proposes to fix a new
fee or revise an existing fee for wharfage, berthage or harbour dues, it shall give notice
of the proposal in accordance with this section and no fee shall come into force before
the expiration of sixty days after the last of the notices is given.
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(2) The notice shall
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(b) specify that a document containing more details about the proposal may be
obtained from the port authority on request; and
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(c) specify that persons interested in making representations in writing to the
port authority about the proposal may do so by writing to the address set out in the
notice.
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(3) The port authority shall
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(a) have the notice published in a major newspaper published or distributed in
the place where the port is situated;
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(b) send, by mail or by electronic means, a copy of the notice to
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(i) organizations whose members will, in the opinion of the port authority, be affected
by the new or revised fee, and
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(c) post an electronic version of the notice in a location that is generally
accessible to persons who have access to what is commonly referred to as the Internet.
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(4) The notice required by this section does not apply to
any fees accepted in a contract under section 53.
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52. (1) Any interested person may at any time file a
complaint with the Agency that there is unjust discrimination in a fee fixed under
subsection 49(1), and the Agency shall consider the complaint without delay and report its
findings to the port authority, and the port authority shall govern itself accordingly.
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(2) Section 40 of the Canada Transportation Act
applies, with such modifications as the circumstances require, to every report of the
Agency made under subsection (1) as if the report were a decision made pursuant to that
Act.
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53. A port authority may agree, by a contract that
the parties may agree to keep confidential, to accept fees in respect of the persons and
things set out in paragraphs 49(1)(a) to (c) that are different from the
fees fixed under those paragraphs.
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Official Languages
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54. The Official Languages Act applies to a
port authority as a federal institution within the meaning of that Act.
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Liquidation and Dissolution
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55. (1) The Governor in Council may, by issuing a
certificate of intent to dissolve, require a port authority to liquidate its assets in
accordance with the certificate or the regulations made under paragraph 27(1)(a)
and may by a subsequent certificate of dissolution dissolve the port authority, and the
letters patent are deemed to be revoked. The net proceeds of liquidation are to be paid on
dissolution to Her Majesty in right of Canada.
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(2) The Governor in Council may, by issuing a certificate of
dissolution, dissolve a port authority without requiring the liquidation of its assets, in
which case the obligations and assets of the port authority revert on dissolution to Her
Majesty in right of Canada under the administration of the Minister.
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(3) A certificate of dissolution issued under this section
becomes effective thirty days after the date it is published in the Canada Gazette.
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(4) The Governor in Council may revoke a certificate of
intent to dissolve at any time before the issuance of a certificate of dissolution by the
issuance of a certificate of revocation of intent to dissolve.
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(5) The revocation is effective on the date set out in the
certificate of revocation and the port authority may then continue to carry on its
activities.
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Port Traffic Control
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56. (1) Subject to any regulations made under section
62, a port authority may, for the purpose of promoting safe and efficient navigation or
environmental protection in the waters of the port, with respect to ships or classes of
ships,
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(2) Subject to any regulations made under section 62, a port
authority may
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(a) require information to be given, for the purpose of obtaining a traffic
clearance, by ships or classes of ships about to enter the port or within the port;
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(3) Subject to any regulations made under section 62,
practices and procedures established by a port authority under subsection (1) shall not be
inconsistent with national standards and practices for marine vessel traffic services, in
particular those established under the Canada Shipping Act.
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57. (1) A port authority shall take reasonable steps
to bring notice of each practice and procedure proposed under paragraph 56(1)(b) to
the attention of persons likely to be affected by it at least thirty days before the
proposed effective date of the measure, and a reasonable opportunity within those thirty
days shall be given to ship owners, masters, persons in charge of ships and other
interested persons to make representations to the port authority with respect to it.
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(2) The notice shall include information as to where a copy
of the proposed measure, including any related documents necessary to understand it, may
be obtained and an invitation to any interested person to make representations to the port
authority with respect to it within those thirty days.
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(3) After the port authority considers any representations
made by interested persons with respect to a proposed measure, it may adopt the measure.
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(4) The port authority shall take reasonable steps to bring
notice of each measure that it adopts, together with notice of the place at which a copy
of the measure may be obtained, to the attention of persons likely to be affected by it.
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(5) Subsection (1) does not apply to a measure
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(a) notice of which has been given pursuant to that subsection, whether or not
it has been changed as a result of representations made pursuant to that subsection; or
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(6) Subsection (1) does not apply where the port authority
is satisfied that an urgent situation exists, but the port authority shall take reasonable
steps to bring notice of the measure to the attention of any person likely to be affected
by it as soon as possible after it comes into force.
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58. (1) For the purpose of promoting safe and
efficient navigation or environmental protection, a port authority may designate a person
or a member of a class of persons to exercise the following powers with respect to ships
about to enter or within the port or an area of the port:
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(a) give a traffic clearance to a ship to enter, leave or proceed within the
port or any area of the port;
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(b) direct the master, pilot, person in charge of the deck watch or any other
person in charge of a ship to provide specified information in respect of the ship;
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(c) direct a ship to use specified radio frequencies in communications with the
port station or other ships; and
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(d) subject to subsection (2), direct a ship, at a specified time or between
specified times,
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(2) A person designated under subsection (1) may direct a
ship to do or refrain from doing anything described in paragraph (1)(d) only if the
person believes on reasonable grounds that any of the following circumstances exist:
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(e) the proximity of a ship in apparent difficulty or presenting a pollution
threat or other hazard to life or property;
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(f) the proximity of a ship navigating in an unsafe manner or with improperly
functioning navigation equipment or radio equipment, or without charts or publications
required by regulations made under paragraph 562.1(1)(a) of the Canada Shipping
Act;
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(g) vessel traffic congestion that constitutes an unacceptable risk to shipping,
navigation, the public or the environment; or
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(3) No ship shall
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(a) if it is required to obtain a traffic clearance, enter, leave or proceed
within a port or a traffic control zone without having obtained the clearance; or
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(b) if required to maintain direct communication with a person designated under
subsection (1), proceed within a port or a traffic control zone unless it is able to do
so.
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59. (1) Subject to subsection (2), a person or ship
is guilty of an offence and liable to a fine of not more than $5,000 where the offence is
committed in respect of a ship of twenty metres in length or less, or to a fine of not
more than $50,000 where the offence is committed in respect of a ship exceeding twenty
metres in length, if the person or ship
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(a) does not follow the practices and procedures established by a port authority
under paragraph 56(1)(b) or have the capacity to use the radio frequencies
specified by the port authority under that paragraph;
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(b) does not do what a person designated under subsection 58(1) requires the
person or the ship to do under that subsection;
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(d) knowingly makes a false or misleading statement, either orally or in
writing, to a person designated under subsection 58(1).
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(2) It is a defence to a charge under subsection (1) that
the master, pilot, person in charge of the deck watch or other person in charge of the
ship
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(a) had reasonable grounds to believe that compliance would have imperilled
life, the ship or any other ship or any property; and
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(b) in the case of a charge under paragraph (1)(b), had notified the
person designated under subsection 58(1) of the non-compliance and of the reasons for it
as soon as possible after it took place.
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(3) Where a ship is prosecuted for an offence under this
section, it is sufficient proof that the ship has committed the offence to establish that
the act or omission that constitutes the offence was committed by the master of the ship
or any person on board the ship, whether or not the person on board has been identified.
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60. For greater certainty, Canadian warships, naval
auxiliary ships and other ships under the command of the Canadian Forces, ships of a
visiting force within the meaning of the Visiting Forces Act and any other ships
while they are under the command of the Royal Canadian Mounted Police have access to
Canadian ports.
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Order and Safety
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61. Subject to any regulations made under section 62,
a port authority shall take appropriate measures for the maintenance of order and the
safety of persons and property in the port.
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Regulations
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62. (1) For the purposes of this Part, the Governor
in Council may make regulations respecting
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(a) the navigation and use by ships of the navigable waters in a port, including
the mooring, berthing and loading and unloading of ships and equipment for the loading and
unloading of ships;
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(b) the use and environmental protection of a port, including the regulation or
prohibition of equipment, structures, works and operations;
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(c) the removal, destruction or disposal of any ship, part of a ship, structure,
work or other thing that interferes with navigation in a port and provision for the
recovery of the costs incurred;
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(e) the regulation of persons, vehicles or aircraft in a port;
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(f) the regulation or prohibition of the excavation, removal or deposit of
material or of any other action that is likely to affect in any way the navigability of a
port or to affect any of the lands adjacent to a port;
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(g) the regulation or prohibition of the transportation, handling or storing, in
a port, of explosives or other substances that, in the opinion of the Governor in Council,
constitute or are likely to constitute a danger or hazard to life or property; and
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(h) the stewardship obligation of a port authority in respect of federal real
property and federal immovables under the management of the port authority.
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(2) A regulation made under subsection (1) may apply to only
one port.
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(3) A regulation made under subsection (1) may be made
binding on Her Majesty in right of Canada or a province.
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(4) Subject to subsection 49(6), any regulations made before
the coming into force of this section with respect to a port in respect of which letters
patent are issued to a port authority shall, to the extent that they are compatible with
this Act, continue in force for a period ending on the earlier of the expiration of twelve
months after the letters patent are issued and the date on which regulations to replace
them are made under subsection (1) with respect to that port.
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63. (1) A port authority has, in respect of the
operation of an airport, the power to enforce regulations made by the Minister for the
purpose of providing unobstructed airspace for the landing and taking off of aircraft at
the airport.
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(2) Subject to its letters patent, a port authority
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(a) shall make regulations in accordance with any agreement entered into by it
with respect to an airport before the coming into force of this subsection; and
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(b) may make regulations with the approval of the Governor in Council if there
is no such agreement.
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(3) The regulations referred to in subsection (2) are for
the regulation and control of the airport and all persons engaged in the operation of
aircraft at the airport, including regulations prohibiting the landing or taking off of
aircraft of a certain type or aircraft exhibiting a certain characteristic.
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(4) A regulation made under subsection (2) may be made
binding on Her Majesty in right of Canada or a province.
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(5) Subject to subsection 49(6), any regulations made with
respect to an airport before the coming into force of subsection (2) by a body that
becomes a port authority under section 12 shall, to the extent that they are compatible
with this Act, continue in force for a period ending on the earlier of
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(a) the expiration of 12 months after letters patent are issued in respect of
the port authority, and
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(b) the date on which regulations to replace them are made under subsection (2)
with respect to the airport.
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64. A port authority may erect marks or signs to
indicate the limits of the navigable waters under its jurisdiction and every mark or sign
so erected is evidence of the limits of those waters.
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PUBLIC PORTS
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Designation by Governor in Council
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65. (1) The Governor in Council may, by regulation,
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(a) designate as a public port any navigable waters within the jurisdiction of
Parliament, including any foreshore;
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(2) Every port and port facility that on the coming into
force of this section was a public harbour or public port facility to which the Public
Harbours and Port Facilities Act applied is deemed to have been designated under
subsection (1).
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(3) With the exception of a port for which a port authority
is incorporated under Part 1, every port and facility to which the Canada Ports
Corporation Act applied on the coming into force of this section is deemed to have
been designated under subsection (1).
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(4) For greater certainty, the Governor in Council may make
regulations under subsection (1) in respect of any public harbour or public port facility
that is deemed under subsection (2) or (3) to have been designated and, in the case of a
public port, define its limits.
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(5) The Minister may have marks or signs erected to indicate
the limits of the navigable waters of a public port and every mark or sign so erected is
evidence of the limits of those waters.
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(6) The Governor in Council may, by regulation, repeal the
designation of a public port or public port facility made or deemed to have been made
under this section.
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(7) A termination order made under subsection 8(2) of the Public
Harbours and Port Facilities Act is deemed to be a regulation made under subsection
(6) and continues in force until it is repealed under the latter subsection.
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66. (1) For the purposes of the Federal Real
Property and Federal Immovables Act, the Minister has the administration of the
federal real property and federal immovables that forms part of a public port or public
port facility.
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(2) The Minister does not have the administration of the
federal real property and federal immovables that are under the administration of any
other member of the Queen's Privy Council for Canada.
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(3) For greater certainty, the repeal of the designation of
a public port or public port facility does not terminate the application of the Federal
Real Property and Federal Immovables Act to the federal real property and federal
immovables that formed part of the port or facility and that is owned by Her Majesty in
right of Canada.
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Fees
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67. (1) The Minister may fix the fees to be paid in
respect of
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(a) ships, vehicles, aircraft and persons coming into or using a public port or
public port facility;
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(b) goods loaded on ships, unloaded from ships or transhipped by water within
the limits of a public port or stored in, or moved across, a public port facility; and
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(c) any service provided by the Minister, or any right or privilege conferred by
the Minister, in respect of the operation of a public port or public port facility.
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(2) The Minister may fix the interest rate to be charged on
overdue fees.
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(3) The fees and the interest rate may be made binding on
Her Majesty in right of Canada or a province.
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(4) The fees fixed under paragraphs (1)(a) and (b)
do not apply in respect of a Canadian warship, naval auxiliary ship or other ship under
the command of the Canadian Forces, a ship of a visiting force within the meaning of the Visiting
Forces Act or any other ship while it is under the command of the Royal Canadian
Mounted Police.
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68. The Minister may enter into agreements to provide
services, rights or privileges, as the Minister considers appropriate, at a public port or
public port facility and may agree by contract to accept fees other than those fixed under
subsection 67(1) for those services, rights and privileges.
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Harbour Masters and Wharfingers
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69. (1) The Minister may appoint as a harbour master
or wharfinger for all or part of a public port or public port facility any person who, in
the Minister's opinion, is qualified and assign responsibilities to that person.
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(2) The Minister may fix the remuneration to be paid to a
harbour master or wharfinger and the amounts of the remuneration may, notwithstanding
anything in the Financial Administration Act, be paid out of the fees collected in
respect of public ports and public port facilities.
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(3) An appointment as a harbour master or wharfinger made by
the Minister under subsection 11(2) of the Public Harbours and Ports Facilities Act,
and the remuneration determined by the Governor in Council under subsection 11(3) of that
Act in respect of that appointment, continue in effect as though they had been made and
fixed under this section.
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Agreements
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70. The Minister may enter into agreements with any
person or body in respect of the management or operation of a public port or public port
facility, or a group of them.
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Federal Real Property and Federal Immovables
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71. (1) Despite the Federal Real Property and
Federal Immovables Act, the Minister may lease any federal real property or federal
immovable that forms, or formed, part of a public port or public port facility or grant a
licence in respect of the property, for twenty years or for a longer period with the
approval of the Governor in Council.
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(2) A lease or licence of any federal real property or
federal immovable may be effected by any instrument by which, under the laws in force in
the province in which the property is situated, real property or immovables may be leased
or a licence may be granted by a private person.
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72. (1) The Minister may enter into agreements in
respect of
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(a) the disposal of all or part of the federal real property and federal
immovables that formed part of a public port or public port facility by sale or any other
means; and
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(b) the transfer of the administration and control of all or part of the federal
real property and federal immovables that formed part of a public port or public port
facility to Her Majesty in right of a province.
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(2) The agreements may include
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(3) The Minister may
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(a) accept and hold on behalf of Her Majesty any security granted to Her Majesty
under the agreements or any security granted in substitution for them; and
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(4) The Minister may take any measures that the Minister
considers appropriate to carry out the agreements and to protect the interests or enforce
the rights of Her Majesty under them.
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(5) The disposal or transfer of federal real property and
federal immovables may be effected under the authority of this section or the Federal
Real Property and Faderal Immovables Act.
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(6) The disposal or transfer of federal real property and
federal immovables under this section may be effected by any instrument by which, under
the laws in force in the province in which the property is situated, real property or
immovables may be transferred by a private person.
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(7) The Minister shall, for each of the four fiscal years
following the coming into force of this section, prepare a report on the disposition and
transfer measures the Minister has taken during that fiscal year and on the continuing
management of public ports and public port facilities during that year. The Minister shall
have the report laid before each House of Parliament within three months after the end of
that fiscal year or, if that House is not then sitting, on any of the first fifteen days
after that time that it is sitting.
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(8) Subject to any regulations made under section 74, the
Minister continues to have the managmeent of public ports and public port facilities that
the Minister has not disposed of or transferred.
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General
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73. The Navigable Waters Protection Act does
not apply to a work, within the meaning of that Act, to which regulations made under
section 74 of this Act apply.
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Regulations
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74. (1) The Governor in Council may make regulations
for the management, control, development and use of public ports and public port
facilities, including regulations respecting
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(a) the navigation and use by ships of a public port, including the mooring,
berthing and loading and unloading of ships and equipment for the loading and unloading of
ships;
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(b) the use and environmental protection of public ports and public port
facilities, including the regulation or prohibition of equipment, structures, works and
operations;
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(c) the removal, destruction or disposal of any ship, part of a ship, structure,
work or other thing that interferes with navigation within the limits of a public port and
provision for the recovery of the costs incurred;
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(d) the maintenance of order and the safety of persons and property within the
limits of a public port or at a public port facility;
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(e) the regulation of persons, vehicles or aircraft within the limits of a
public port or at a public port facility;
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(f) the regulation or prohibition of the excavation, removal or deposit of
material or of any other action that is likely to affect in any way the navigability of a
public port or the operation of a public port facility or to affect any of the lands
adjacent to a port or facility; and
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(g) the regulation or prohibition of the transportation, handling or storing,
within the limits of a public port or at a public port facility, of explosives or other
substances that, in the opinion of the Governor in Council, constitute or are likely to
constitute a danger or hazard to life or property.
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(2) A regulation made under subsection (1) may apply to only
one public port or public port facility.
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(3) A regulation made under subsection (1) may be made
binding on Her Majesty in right of Canada or a province.
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75. Regulations made under section 12 of the Public
Harbours and Port Facilities Act are deemed to have been made under this Part and
continue in force until
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(a) in the case of regulations in respect of rates, tolls, fees or other
charges, they are repealed by the Minister; and
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(b) in any other case, they are repealed by regulations made under subsection
74(1).
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Traffic Control
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76. Subject to regulations made under subsection
74(1), a person or a member of a class of persons designated by the Minister under this
section may take the measures necessary for the control of traffic in a public port, and
sections 56 to 59 apply with such modifications as the circumstances require, except that,
in making those modifications to section 58, the references in that section to a person or
member of a class of persons designated under subsection 58(1) shall be taken to be
references to a person or member of a class of persons designated under this section.
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SEAWAY
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Interpretation
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77. The definitions in this section apply in this
Part.
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"Authority"
« Administration »
"Authority" means The St. Lawrence Seaway Authority
established by subsection 3(1) of the St. Lawrence Seaway Authority Act.
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"not-for-profit corporation"
« société sans but lucratif »
"not-for-profit corporation" means a not-for-profit
corporation described in subsection 80(5).
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Objectives
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78. The objectives of this Part are to
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(d) protect the long-term operation and viability of the Seaway as an integral
part of Canada's national transportation infrastructure;
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(f) protect the significant investment that the Government of Canada has made in
respect of the Seaway;
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(h) encourage new cooperative arrangements with the United States for the
management of the transportation facilities and services in the Great Lakes-St. Lawrence
region.
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Powers of Minister
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79. The Minister may
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(a) acquire lands for, and construct, maintain and operate the works that are
necessary for, the operation of the Seaway, including works either wholly in Canada or in
conjunction with works undertaken by an appropriate authority in the United States;
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(b) construct, maintain and operate any works in connection with the Seaway that
the Governor in Council may deem necessary to fulfil an obligation undertaken or to be
undertaken by Canada pursuant to any present or future agreement between Canada and the
United States;
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(c) operate and manage bridges, including acquire lands for, and construct,
maintain and operate, alone or jointly or in conjunction with an appropriate authority in
the United States, bridges connecting Canada with the United States and, to that end or as
incidental to it, acquire shares or property of any bridge company;
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(d) acquire lands for, and construct or otherwise acquire, maintain and operate,
any works or other property that the Governor in Council may deem necessary for works
undertaken pursuant to this Part;
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(e) fix the fees to be charged for the use of any property under the Minister's
administration that forms part of the Seaway or for any service provided or any right or
privilege conferred in connection with the Seaway; and
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(f) take any measures that may be necessary for the purposes of any present or
future agreement in respect of the Seaway.
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80. (1) The Minister may direct the Authority to
transfer, on the terms and conditions specified by the Minister, all or part of its
property or undertakings to the Minister, any other member of the Queen's Privy Council
for Canada, any other person or any body established under an international agreement, and
the Authority shall immediately comply.
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(2) Where any property or undertaking is transferred to the
Minister under subsection (1), the Minister may transfer it to any other member of the
Queen's Privy Council for Canada, any other person or any body established under an
international agreement.
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(3) The Federal Real Property and Federal Immovables Act
does not apply to a transfer under subsection (1) or (2) unless it is a sale of land to a
person or body other than the Minister or any other member of the Queen's Privy Council
for Canada.
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(4) The Surplus Crown Assets Act does not apply to a
transfer under subsection (1) or (2).
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(5) The Minister may enter into agreements in respect of all
or part of the Seaway and the property or undertakings referred to in subsection (1) or
(2) and those agreements may be with a not-for-profit corporation that accords a major
role to Seaway users, in particular in the way in which directors of the corporation are
appointed and in its operations, or, where the Minister considers it appropriate, with any
other person or any body established under an international agreement.
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(6) An agreement may include any terms and conditions that
the Minister considers appropriate, including provisions respecting
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(a) the transfer of all or part of the property or undertakings referred to in
subsection (1) or (2);
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(b) the management and operation of all or part of the Seaway or the property or
undertakings referred to in subsection (1) or (2);
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(c) the construction, maintenance and operation of all or part of the Seaway;
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(g) the making of financial contributions or grants or the giving of any other
financial assistance;
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(i) where the agreement is with a body referred to in subsection (5), the
application of any of the provisions of this Part relating to an agreement with a
not-for-profit corporation or other person referred to in that subsection.
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(7) A transfer of land under paragraph (6)(a) does
not affect a right or interest of any person or body of persons, including an Indian band
within the meaning of the Indian Act, that existed in the land before the coming
into force of this Part.
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(8) The terms of an agreement with a not-for-profit
corporation or other person shall include
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(a) a clause providing for the termination of the agreement in the event of the
establishment of a body under an international agreement in respect of the Seaway; and
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(b) a clause providing for the protection of the rights of privacy of persons
affected by the agreement and, in that regard, may include a clause requiring the
not-for-profit corporation or other person to obligate itself to provide for privacy
protection in its contracts with or in respect of affected persons, including employment
contracts and collective agreements.
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(9) The Minister may take any measures that the Minister
considers appropriate to carry out an agreement and to protect the interests or enforce
the rights of Her Majesty under an agreement, including, if the agreement so provides,
making advances to, and receiving advances from, the person with whom the agreement is
made and determining the rates of interest that apply.
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(10) The Minister may
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(a) accept and hold on behalf of Her Majesty any security granted to Her Majesty
under the agreement or any security granted in substitution for it; and
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(11) The obligations imposed in respect of a not-for-profit
corporation under sections 83 to 89 apply equally to a person who has entered into an
agreement under subsection 80(5) to the extent that the agreement so provides.
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81. An amount payable by the Minister under an
agreement entered into under subsection 80(5) is payable out of the Consolidated Revenue
Fund.
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82. The rights and obligations of a person who enters
into an agreement under subsection 80(5) are, where the agreement so provides and the
Minister has published a notice in the Canada Gazette to that effect, as follows:
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(a) the name of the person shall be substituted for that of the Authority in
every contract, collective agreement, lease, licence, permit or other document entered
into or granted by the Authority, other than those set out specifically or by class in the
agreement and notice; and
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(b) the personal property, and any rights related to the property, that the
Authority administers, or the title to which it holds, on behalf of Her Majesty in right
of Canada, whether or not in its own name, other than those set out specifically or by
class in the agreement and notice, become the property and rights of the person.
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Annual Meeting
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83. (1) A not-for-profit corporation shall each year
hold a meeting that is open to the public in each city mentioned in the agreement, in
premises large enough to accommodate the anticipated attendance, to inform the public
about its activities in respect of the operation of the Seaway.
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(2) The not-for-profit corporation shall, at least thirty
days before a meeting, have notice of the meeting published in a major newspaper published
or distributed in each city mentioned in the agreement, setting out the time and location
of the meeting and specifying that the financial statements relating to the operation of
the Seaway are available to the public at its principal place of business.
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(3) The not-for-profit corporation shall ensure, at each
meeting,
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(a) that there are available a sufficient number of copies of the most recent
audited annual financial statements relating to the operation of the Seaway for the
persons present at the meeting; and
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(b) that its chief executive officer and directors are available to answer
questions about the operation of the Seaway posed by the persons present at the meeting.
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Financial Management
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84. (1) A not-for-profit corporation shall make
available for inspection by the public, at its principal place of business during normal
business hours at least thirty days before the meeting, its audited annual financial
statements that deal with its activities in respect of the operation of the Seaway for the
preceding fiscal year.
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(2) The financial statements shall be prepared in accordance
with generally accepted accounting principles and consist of at least the following:
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(3) The total remuneration that each director or officer
receives in a year from the corporation, including any fee, allowance or other benefit,
shall be set out in the annual financial statements for that year.
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(4) The Governor in Council may make regulations in respect
of the preparation, form and content of the documents referred to in paragraphs (2)(a)
to (d) and the information referred to in subsection (3).
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85. (1) A not-for-profit corporation shall, in
respect of its activities in respect of the operation of the Seaway, ensure that
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(b) financial and management control and information systems and management
practices are maintained.
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(2) The books, records, systems and practices shall be kept
and maintained in a manner that will provide reasonable assurance that
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(b) the transactions of the corporation in relation to the Seaway are in
accordance with this Part; and
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(c) the financial, human and physical resources of the corporation in relation
to the Seaway are managed economically and efficiently and the operations of the Seaway
are carried out effectively.
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86. The Minister may appoint an auditor to audit the
books of account and accounting records referred to in subsection 85(1) to ensure
compliance with the agreement.
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Special Examinations
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87. (1) A not-for-profit corporation shall have a
special examination carried out to determine whether the books, records, systems and
practices referred to in subsection 85(1) were, in the period under examination,
maintained in a manner that provided reasonable assurance that they met the requirements
of subsection 85(2).
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(2) A special examination shall be carried out at least once
every five years and at any additional times that the Minister may require.
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(3) Before beginning a special examination, the examiner
shall survey the systems and practices of the corporation in relation to the operation of
the Seaway and submit a plan for the examination, including a statement of the criteria to
be applied, to the corporation and, in the case where the Minister has required the
special examination to be carried out, to the Minister.
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(4) Any disagreement between the examiner and the
corporation with respect to the plan is to be resolved by the Minister.
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(5) The examiner shall, to the extent the examiner considers
it feasible, rely on an internal audit carried out by the corporation in relation to the
operation of the Seaway.
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88. (1) The examiner shall, on completion of the
special examination, submit a report of the findings to the Minister and to the
corporation.
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(2) The examiner's report shall include
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(a) a statement as to whether in the examiner's opinion, with respect to the
criteria established under subsection 87(3), there is reasonable assurance that there are
no significant deficiencies in the systems and practices examined; and
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(3) A not-for-profit corporation shall, as soon as is
practicable after receiving the report, have notice of the report published in a major
newspaper published or distributed in each city mentioned in the agreement.
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(4) The corporation shall make the report available for
inspection by the public at its principal place of business during normal business hours.
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89. Where, in the opinion of the Minister, someone
other than the special examiner chosen by a not-for-profit corporation should carry out a
special examination, the Minister may, after consulting with the corporation, appoint
another auditor and may, after again consulting with the corporation, remove that auditor
at any time.
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Property
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90. For the purposes of the Federal Real Property
and Federal Immovables Act, the Minister or other member of the Queen's Privy Council
for Canada to whom federal real property or federal immovable is transferred under
subsection 80(1) or (2) has the administration of the property.
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91. (1) Where an agreement entered into under
subsection 80(5) so provides, the person who has entered into the agreement
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(a) need not pay compensation in respect of the use of the property that is
owned by Her Majesty and managed by the person;
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(b) may, notwithstanding the Financial Administration Act, retain and use
the revenue received in respect of the property for the purpose of operating the Seaway;
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(d) shall undertake and defend any legal proceedings with respect to the
management of the property; and
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(2) A civil, criminal or administrative action or proceeding
with respect to federal real property or federal immovable that a person who has entered
into an agreement under subsection 80(5) manages, or any property that it holds, or with
respect to any act or omission occurring on the property, shall be taken by or against the
person and not the Crown.
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(3) The Federal Real Property and Federal Immovables Act,
other than section 12, does not apply to a lease or licence referred to in paragraph (1)(c).
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(4) A lease or licence may be effected by any instrument by
which real property or immovables may be leased or a licence may be granted by a private
person under the laws in force in the province in which the property is situated.
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(5) A person who has entered into an agreement under
subsection 80(5) may not mortgage, hypothecate, pledge or otherwise create a security
interest in the property the person manages under that agreement in any way other than,
where the agreement so provides, to pledge its revenues for the term of the agreement.
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Fees
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92. (1) Where an agreement under subsection 80(5) so
provides and subject to subsection (2), the person who has entered into the agreement may
fix fees that
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(a) are for the use of any property under the person's management, any service
that the person provides or any right or privilege that the person confers; and
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(b) take into account the obligations of the person under the agreement and the
aim to provide a revenue sufficient to cover the costs of the management, maintenance and
operation of the property and the maintenance of a capital and operating reserve fund.
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(2) Where an agreement in respect of fees is entered into by
Canada and the United States and is in force, the person who has entered into an agreement
under subsection 80(5) shall charge the fees fixed under the international agreement in
accordance with the directions of the Governor in Council.
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(3) The tariffs of tolls established by the Authority under
section 16 of the St. Lawrence Seaway Authority Act continue in force until they
are repealed by the person who has entered into an agreement under subsection 80(5) and no
fee fixed by the person under subsection (1) shall come into force until that repeal.
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93. (1) A person who has entered into an agreement
under subsection 80(5) shall not unjustly discriminate among users or classes of users of
the Seaway, give an undue or unreasonable preference to any user or class of user or
subject any user or class of user to an undue or unreasonable disadvantage with respect to
the Seaway.
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(2) It is not unjust discrimination and it is not an undue
nor an unreasonable preference or disadvantage to differentiate among users or classes of
users on the basis of the volume or value of goods shipped or on any other basis that is
generally commercially accepted.
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94. (1) A notice setting out the fees fixed under
subsection 92(1) shall be filed with the Agency and the fees may be charged from the date
of filing.
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(2) Any interested person may at any time file a complaint
with the Agency that there is unjust discrimination in a fee referred to in subsection
(1), and the Agency shall consider the complaint without delay and report its findings to
the Minister or to the person who fixed the fee, as the case may be, and they shall govern
themselves accordingly.
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(3) Section 40 of the Canada Transportation Act
applies, with such modifications as the circumstances require, to every report of the
Agency made under subsection (2) as if the report were a decision made pursuant to that
Act.
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Official Languages Act
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95. The Official Languages Act applies, in
respect of the management of properties and undertakings that are the subject of an
agreement entered into under subsection 80(5), to the person who has entered into the
agreement as if the person were a federal institution within the meaning of that Act.
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Dissolution
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96. (1) The Authority is dissolved on the date fixed
by the Governor in Council and all its assets and obligations devolve to Her Majesty in
right of Canada under the administration of the Minister.
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(2) On the dissolution of the Authority,
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(a) all the shares of its subsidiaries are transferred to, and held by, the
Minister on behalf of Her Majesty in right of Canada;
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(b) the subsidiaries shall take all necessary steps to ensure that their
shareholder records are brought up to date in regard to the transfer; and
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(c) the Minister becomes the appropriate minister for the purposes of the Financial
Administration Act.
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(3) The directors of the Authority and of its subsidiaries,
other than the Great Lakes Pilotage Authority, Ltd., cease to hold office on the date
fixed under subsection (1).
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(4) Neither the Minister nor a person who has entered into
an agreement under subsection 80(5) is bound by any severance agreement entered into
between the Authority or any of its subsidiaries and any of their officers after December
1, 1995.
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97. (1) Until the dissolution of the Authority by
virtue of section 96, the Corporate Services of the Authority shall be located in
Cornwall, Ontario.
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(2) A not-for-profit corporation shall maintain its head
office, including Corporate Services in respect of its Seaway operations, at Cornwall,
Ontario.
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Regulations
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98. (1) The Governor in Council may make regulations
for the management, control, development and use of the Seaway and property and
undertakings in connection with the Seaway, including regulations respecting
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(a) the navigation and use by ships of the navigable waters of the Seaway,
including the mooring, berthing and loading and unloading of ships and equipment for the
loading and unloading of ships;
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(b) the use and environmental protection of the Seaway or any land used in
connection with the Seaway, including the regulation or prohibition of equipment,
structures, works and operations;
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(c) the removal, destruction or disposal of any ship, part of a ship, structure,
work or other thing that interferes with navigation in the Seaway and the provision for
the recovery of the costs incurred;
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(d) the maintenance of order and the safety of persons and property in the
Seaway or on any land used in connection with the Seaway;
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(e) the regulation of persons, vehicles or aircraft in the Seaway or on any land
used in connection with the Seaway;
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(f) the regulation or prohibition of the excavation, removal or deposit of
material or of any other action that is likely to affect in any way the navigability or
operation of the Seaway or to affect any of the lands adjacent to the Seaway; and
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(g) the regulation or prohibition of the transportation, handling or storing in
the Seaway, or on any land used in connection with the Seaway, of explosives or other
substances that, in the opinion of the Governor in Council, constitute or are likely to
constitute a danger or hazard to life or property.
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(2) A regulation made under subsection (1) may be made
binding on Her Majesty in right of Canada or a province.
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(3) Regulations made by the Authority under section 20 of
the St. Lawrence Seaway Authority Act are, to the extent that they are compatible
with this Act, deemed to have been made by the Governor in Council under this section.
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Traffic Control
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99. Subject to regulations made under section 98, a
person or a member of a class of persons designated by the Minister or, where an agreement
under subsection 80(5) so provides, by the person who has entered into the agreement, may
take the measures necessary for the control of traffic in the Seaway, and sections 56 to
59 apply with such modifications as the circumstances require, except that, in making
those modifications to section 58, the references in that section to a person or member of
a class of persons designated under subsection 58(1) shall be taken to be references to a
person or member of a class of persons designated under this section.
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General
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100. The appropriate authority in the United States
in respect of the Seaway has the powers necessary to enable it to act, in Canada, jointly
or in conjunction with the Minister or with any person who has entered into an agreement
under subsection 80(5).
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101. The Navigable Waters Protection Act does
not apply to a work, within the meaning of that Act, to which regulations made under
section 98 of this Act apply.
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102. Nothing in this Part affects the operation of
the International Boundary Waters Treaty Act.
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Next Section
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Responsibility