Fisheries Act · GlobalLawDB

Contents

1Short title#

This Act may be cited as the Fisheries Act.^note

2Definitions#

(1)In this Act,

Aboriginal [Repealed, 2019, c. 14, s. 1]

analyst means a person who is designated under subsection 56.1(1) to perform the functions of an analyst; (analyste)

Canadian fisheries waters means all waters in the fishing zones of Canada, all waters in the territorial sea of Canada and all internal waters of Canada; (eaux de pêche canadiennes)

close time means a specified period during which fish to which it applies may not be fished, and “closed time” or “closed season” has a similar meaning; (période d’interdiction et période de fermeture ou saison de fermeture)

commercial [Repealed, 2019, c. 14, s. 1]

fish includes

(a)parts of fish,

(b)shellfish, crustaceans, marine animals and any parts of shellfish, crustaceans or marine animals, and

(c)the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans and marine animals; (poissons)

fishery with respect to any fish, includes,

(a)any of its species, populations, assemblages and stocks, whether the fish is fished or not,

(b)any place where fishing may be carried on,

(c)any period during which fishing may be carried on,

(d)any method of fishing used, and

(e)any type of fishing gear or equipment or fishing vessel used; (pêche)

fishery guardian means a person who is designated as a fishery guardian pursuant to subsection 5(1); (garde-pêche)

fishery officer means a person who is designated as a fishery officer pursuant to subsection 5(1); (agent des pêches)

fish habitat means water frequented by fish and any other areas on which fish depend directly or indirectly to carry out their life processes, including spawning grounds and nursery, rearing, food supply and migration areas; (habitat)

fishing means fishing for, catching or attempting to catch fish by any method; (pêche)

fishing vessel means any vessel used, outfitted or designed for the purpose of catching, processing or transporting fish; (bateau de pêche)

fishway means any device, work or other thing that provides for the free passage of fish, including a canal, a fish pump, a fish ladder, a fish elevator and a fish lock; (passe migratoire)

Indigenous [Repealed, 2019, c. 14, s. 1]

Indigenous governing body means a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982; (corps dirigeant autochtone)

Indigenous peoples of Canada has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982; (peuples autochtones du Canada)

inspector means a person who is designated as an inspector pursuant to subsection 38(1); (inspecteur)

lawful excuse [Repealed, 1991, c. 1, s. 1]

laws includes the by-laws made by an Indigenous governing body; (lois)

Minister means the Minister of Fisheries and Oceans or, in respect of any matter related to the Northern Pipeline referred to in the Northern Pipeline Act, the member of the Queen’s Privy Council for Canada designated as the Minister for the purposes of that Act; (ministre)

obstruction means any slide, dam or other thing impeding wholly or partially the free passage of fish; (obstacle)

recreational [Repealed, 2019, c. 14, s. 1]

vehicle means any conveyance that may be used for transportation, including aircraft. (véhicule)

(2)[Repealed, 2019, c. 14, s. 1] (repealed)

Purpose

2.1Purpose of Act#

The purpose of this Act is to provide a framework for

(a)the proper management and control of fisheries; and

(b)the conservation and protection of fish and fish habitat, including by preventing pollution.

^note

Territorial Application

2.2Application#

(1)This Act applies in Canada, and also to

(a)Canadian fisheries waters; and

(b)with respect to a sedentary species, any portion of the continental shelf of Canada that is beyond the limits of Canadian fisheries waters.

(2)For the purpose of paragraph (1)(b), sedentary species means any organism that, at the harvestable stage, either is immobile on or under the seabed or is unable to move except by remaining in constant physical contact with the seabed or subsoil.

Indigenous Peoples of Canada

2.3 #

[Repealed, 2024, c. 30, s. 2] (repealed)

2.4Duty of Minister#

When making a decision under this Act, the Minister shall consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.^note

Considerations

2.5Considerations for decision making#

Except as otherwise provided in this Act, when making a decision under this Act, the Minister may consider, among other things,

(a)the application of a precautionary approach and an ecosystem approach;

(b)the sustainability of fisheries;

(c)scientific information;

(d)Indigenous knowledge of the Indigenous peoples of Canada that has been provided to the Minister;

(e)community knowledge;

(f)cooperation with any government of a province, any Indigenous governing body and any body — including a co-management body — established under a land claims agreement;

(g)social, economic and cultural factors in the management of fisheries;

(h)the preservation or promotion of the independence of licence holders in commercial inshore fisheries; and

(i)the intersection of sex and gender with other identity factors.

^note

Application

3Provincial rights not affected#

(1)Nothing in this Act shall be taken to authorize the granting of fishery leases that confer an exclusive right to fish in property belonging to a province.

(2)This Act is binding on Her Majesty in right of Canada or a province.

^note

4Licences to take spawn#

Nothing in this Act precludes the granting by the Minister of written permission to obtain fish for purposes of stocking or artificial breeding or for scientific purposes.^note

Advisory Panels

4.01Minister may establish advisory panels#

(1)The Minister may, in order to carry out the purpose of this Act, establish advisory panels and provide for their membership, functions and operation.

(2)Members of an advisory panel established under subsection (1) are to be paid any amount that is fixed by the Governor in Council for each day that they attend any of the advisory panel’s meetings.

(3)The members are also entitled to be reimbursed, in accordance with Treasury Board directives, for the travel, living and other expenses incurred in connection with their work for the panel while absent from their ordinary place of work, in the case of full-time members, or from their ordinary place of residence, in the case of part-time members.

^note

Agreements, Programs and Projects

4.1Minister may enter into agreements#

(1)The Minister may enter into an agreement with any government of a province, any Indigenous governing body and any body — including a co-management body — established under a land claims agreement, to further the purpose of this Act, including an agreement with respect to one or more of the following:

(a)facilitating cooperation between the parties to the agreement, including facilitating joint action in areas of common interest, reducing overlap between their respective programs and otherwise harmonizing those programs;

(b)facilitating enhanced communication between the parties, including the exchange of scientific and other information; and

(c)facilitating public consultation or the entry into arrangements with third-party stakeholders.

(2)An agreement may establish

(a)the roles, powers and functions of the parties;

(b)programs and projects;

(c)principles and objectives of the parties’ respective programs and projects;

(d)standards, guidelines and codes of practice to be followed by the parties in the administration of their respective programs and projects;

(e)processes for policy development, operational planning and communication between the parties, including the exchange of scientific and other information;

(f)the administrative structures that will be used to carry out the agreement’s objectives;

(g)the power of the parties to create committees and public panels and to conduct public consultations; and

(h)the circumstances and manner in which the government of the province or the Indigenous governing body is to provide information on the administration and enforcement of a provision of the laws of the province or the Indigenous governing body that the agreement provides is equivalent in effect to a provision of the regulations.

(3)The Governor in Council may make regulations establishing the conditions under which the Minister may enter into or renew an agreement, including procedures for entering into or renewing the agreement.

(4)Subject to subsections (5) to (8), the Minister shall publish an agreement in the manner that he or she considers appropriate.

(5)Before any agreement that is negotiated for the purposes of section 4.2 is entered into, the Minister shall publish the agreement, or give notice of its availability, in Part I of the Canada Gazette and in any other manner that he or she considers appropriate.

(6)Within 60 days after the publication of an agreement or the giving of notice of its availability, any person may file comments with the Minister.

(7)After the end of the 60-day period, the Minister shall publish in Part I of the Canada Gazette and in any other manner that he or she considers appropriate a report that summarizes how any comments were dealt with or a notice of the availability of that report.

(8)The Minister shall publish any final agreement, or give notice of its availability, in Part I of the Canada Gazette and in any other manner that he or she considers appropriate.

(9)An agreement entered into under subsection (1) must respect the rights recognized and affirmed by section 35 of the Constitution Act, 1982.

^note

4.2Declaration of equivalent provisions#

(1)If an agreement entered into under section 4.1 provides that there is in force a provision of the laws of the province or the Indigenous governing body that is equivalent in effect to a provision of the regulations, the Governor in Council may, by order, declare that certain provisions of this Act or of the regulations do not apply in the province or the territory governed by the Indigenous governing body, as the case may be, with respect to the subject matter of the provision of the laws of the province or the Indigenous governing body.

(2)Except with respect to Her Majesty in right of Canada, the provisions of this Act or of the regulations that are set out in the order do not apply within the province or the territory governed by the Indigenous governing body, as the case may be, with respect to the subject matter of the provision of the laws of the province or the Indigenous governing body.

(3)The Governor in Council may revoke the order if the Governor in Council is satisfied that the provision of the laws of the province or the Indigenous governing body, as the case may be, is no longer equivalent in effect to the provision of the regulations or is not being adequately administered or enforced.

(4)The Governor in Council may revoke the order only if the Minister has given notice of the proposed revocation to the government of the province or to the Indigenous governing body, as the case may be.

(5)The order ceases to have effect either when it is revoked by the Governor in Council or when the agreement to which the order relates terminates or is terminated.

^note

4.3Report to Parliament#

The Minister shall, as soon as feasible after the end of each fiscal year, prepare and cause to be laid before each house of Parliament a report on the administration of sections 4.1 and 4.2 in that fiscal year.^note

4.4Objectives#

(1)The Minister may implement programs and projects for the purposes of this Act and, to facilitate the implementation of a program or project, may

(a)make grants and contributions;

(b)make loans;

(c)make recoverable expenditures on behalf of any person or body, or any federal or provincial minister, department or agency; and

(d)guarantee the repayment of any financial obligation, or provide loan insurance or credit insurance in respect of such an obligation.

(2)The Governor in Council may, on the recommendation of the Minister and the Minister of Finance, make regulations respecting such grants, contributions, loans, guarantees and insurance.

(3)In exercising powers and performing functions under subsection (1), the Minister may

(a)enter into agreements — including an agreement under section 4.1 — or arrangements or transactions with any person or body, or any federal or provincial minister, department or agency; and

(b)with the approval of the Minister of Finance, requisition amounts in respect of such an agreement, arrangement or transaction to be paid out of the Consolidated Revenue Fund.

^note

Fishery Officers and Fishery Guardians

5Designation#

(1)The Minister may designate any persons or classes of persons as fishery officers or fishery guardians for the purposes of this Act and may limit in any manner the Minister considers appropriate the powers that a fishery officer or fishery guardian may exercise under this Act or any other Act of Parliament.

(2)Each fishery officer and fishery guardian shall be provided with a certificate in a form the Minister considers appropriate certifying their designation as such and, where the powers of a fishery officer or fishery guardian are limited pursuant to subsection (1), specifying the powers that the officer or guardian may exercise under this Act or any other Act of Parliament.

(3)On entering any place under this Act or any other Act of Parliament, a fishery officer or fishery guardian shall, on request, show the certificate of designation to the person in charge of the place.

(4)The powers and protections that a fishery officer or fishery guardian has under this or any other Act of Parliament, including the powers and protections of a peace officer under the Criminal Code, apply to a fishery officer or fishery guardian enforcing

(a)Nisga’a laws made under the Fisheries Chapter of the Nisga’a Final Agreement given effect by the Nisga’a Final Agreement Act;

(a.1)Tla’amin Laws, as defined in subsection 2(2) of the Tla’amin Final Agreement Act, made under Chapter 9 of the Agreement, as defined in subsection 2(1) of that Act, given effect by that Act;

(b)Tsawwassen Laws, within the meaning of subsection 2(2) of the Tsawwassen First Nation Final Agreement Act, made under chapter 9 of the Agreement, as defined in subsection 2(1) of that Act, given effect by that Act; or

(c)Maanulth Laws, within the meaning of subsection 2(2) of the Maanulth First Nations Final Agreement Act, made under chapter 10 of the Agreement, as defined in subsection 2(1) of that Act, given effect by that Act.

^note

5.1Exercise of powers#

Every power that may be exercised in Canada by a fishery officer or fishery guardian under this Act may be exercised anywhere this Act applies.^note

6 #

[Repealed, 2019, c. 14, s. 8] (repealed)

Fish Stocks

6.1Measures to maintain fish stocks#

(1)In the management of fisheries, the Minister shall implement measures to maintain major fish stocks at or above the level necessary to promote the sustainability of the stock, taking into account the biology of the fish and the environmental conditions affecting the stock.

(2)If the Minister is of the opinion that it is not feasible or appropriate, for cultural reasons or because of adverse socio-economic impacts, to implement the measures referred to in subsection (1), the Minister shall set a limit reference point and implement measures to maintain the fish stock above that point, taking into account the biology of the fish and the environmental conditions affecting the stock.

(3)If the Minister sets a limit reference point in accordance with subsection (2), he or she shall publish the decision to do so, within a reasonable time and with reasons, on the Internet site of the Department of Fisheries and Oceans.

^note

6.2Plan to rebuild#

(1)If a major fish stock has declined to or below its limit reference point, the Minister shall develop a plan to rebuild the stock above that point in the affected area, taking into account the biology of the fish and the environmental conditions affecting the stock, and implement it within the period provided for in the plan.

(2)If the Minister is of the opinion that such a plan could result in adverse socio-economic or cultural impacts, the Minister may amend the plan or the implementation period in order to mitigate those impacts while minimizing further decline of the fish stock.

(3)Subsection (1) does not apply if the affected fish stock is an endangered species or a threatened species under the Species at Risk Act or if the implementation of international management measures by Canada does not permit it.

(4)If the Minister amends a plan in accordance with subsection (2) or decides not to make one in accordance with subsection (3), he or she shall publish the decision to do so, within a reasonable time and with reasons, on the Internet site of the Department of Fisheries and Oceans.

(5)In the management of fisheries, if the Minister is of the opinion that the loss or degradation of the stock’s fish habitat has contributed to the stock’s decline, he or she shall take into account whether there are measures in place aimed at restoring that fish habitat.

^note

6.3Regulations#

The major fish stocks referred to in sections 6.1 and 6.2 are to be prescribed by regulations.^note

Fishery Leases and Licences

7Fishery leases and licences#

(1)Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on.

(1.1)The Minister may refuse to issue a lease or licence for fisheries or fishing to a person, if, among other things, they are in default of payment of a fine in relation to a contravention of the Act and the proceeds of the fine belong to Her Majesty in Right of Canada or of a province or to any other person or entity.

(2)Except as otherwise provided in this Act or regulations made under it, leases or licences for any term of more than nine years shall be issued only under the authority of the Governor in Council.

^note

8Fees#

(1)Except if fees are prescribed in this Act, the Governor in Council may, by regulation and on the recommendation of the Minister, prescribe the fees that are to be charged for fishery or fishing licences and for fishing quotas.

(2)For greater certainty, the regulations made under subsection (1) may provide for periodic adjustment of the fees referred to in that subsection.

9Suspension or cancellation#

(1)Subject to subsection (2), the Minister may suspend or cancel any lease or licence issued under the authority of this Act, if

(a)he or she determines that any provision of that lease or licence was not complied with;

(b)he or she determines that the lease or licence holder has, with respect to the lease or licence, entered into an agreement that contravenes any provision of this Act or of the regulations; or

(c)the lease or licence holder is in default of payment of a fine in relation to a contravention of this Act and the proceeds of the fine belong to Her Majesty in right of Canada or of a province or to any other person or entity.

(2)The Minister may suspend or cancel a lease or licence under paragraph (1)(a) or (b) only if no proceedings under this Act have been commenced with respect to the non-compliance or contravention referred to in those paragraphs, as the case may be.

^note

Fisheries Management Orders

9.1Powers of Minister#

(1)The Minister may, if he or she is of the opinion that prompt measures are required to address a threat to the proper management and control of fisheries and the conservation and protection of fish, make a fisheries management order with respect to any aspect of fisheries in any area of Canadian fisheries waters specified in the order

(a)prohibiting fishing of one or more species, populations, assemblages or stocks of fish;

(b)prohibiting any type of fishing gear or equipment or fishing vessel from being used;

(c)limiting the fishing of any specified size, weight or quantity of any species, populations, assemblages or stocks of fish; and

(d)imposing any requirements with respect to fishing.

(2)The Minister may impose any conditions that he or she considers appropriate in the order.

(3)The fisheries management order may provide that it applies only to

(a)a particular class of persons, including

(i)persons who fish using a particular method or a particular type of gear or equipment, and

(ii)persons who use fishing vessels of a particular class; or

(b)holders of a particular class of licence.

^note

9.2Duty to comply#

Every person or holder to whom a fisheries management order applies shall comply with it.^note

9.3Duration#

(1)A fisheries management order issued under section 9.1 shall be in effect for the term specified in the order, which shall not exceed 45 days from the day on which the order is issued.

(2)If the Minister is of the opinion that prompt measures continue to be required to address the threat referred to in subsection 9.1(1), he or she may renew the order for a term that does not exceed 45 days from the day on which it is issued.

^note

9.4Amendment of order#

(1)The Minister may amend a fisheries management order, other than its term, if he or she is of the opinion that the measures specified in the order are inadequate to address the threat referred to in subsection 9.1(1).

(2)If the Minister is of the opinion that the measures specified in the order are no longer necessary to address the threat or if the threat no longer exists, he or she may revoke the order.

^note

9.5Notice#

(1)Notice of a fisheries management order shall be given to the persons or holders to whom it applies, in the prescribed manner or, if there is no prescribed manner, using a method provided under section 7 of the Fishery (General) Regulations, with any necessary modifications.

(2)If notice is not given, then the contravention of a fisheries management order is not an offence under this Act unless, at the time of the contravention, reasonable steps had been taken to bring the substance of the order to the notice of the persons or holders to whom it applies.

^note

9.6Inconsistency#

If there is an inconsistency between a fisheries management order and any regulations made under this Act, orders issued under those regulations or conditions of any lease or licence issued under this Act, the fisheries management order prevails to the extent of the inconsistency.^note

9.7Statutory Instruments Act#

Orders made under section 9.1 are not statutory instruments for the purposes of the Statutory Instruments Act.^note

Fish Allocation for Financing Purposes

10Allocation of fish#

(1)For the proper management and control of fisheries and the conservation and protection of fish, the Minister may determine a quantity of fish or of fishing gear and equipment that may be allocated for the purpose of financing scientific and fisheries management activities that are described in a joint project agreement entered into with any person or body, or any federal or provincial minister, department or agency.

(2)The Minister may specify, in a licence issued under this Act, a quantity of fish or of fishing gear and equipment allocated for the purpose of financing those activities.

^note

Fees

11Fees for services or use of facilities#

(1)The Minister may fix, by regulation, the fees to be paid for a service or the use of a facility provided under this Act by him or her, the Department of Fisheries and Oceans or any board or agency of the Government of Canada for which he or she has responsibility.

(2)Fees that are fixed under subsection (1) shall not exceed the cost to Her Majesty in right of Canada of providing the service or the use of the facility.

^note

12Fees for products or cost recovery#

(1)The Minister may fix, by regulation, fees in respect of the products provided or the recovery, in whole or in part, of costs that are incurred in relation to the administration of this Act by him or her, the Department of Fisheries and Oceans or any board or agency of the Government of Canada for which he or she has responsibility.

(2)Fees in respect of the product or recovery of costs that are fixed under subsection (1) shall not exceed the cost to Her Majesty in right of Canada of providing the product or recovering of costs.

^note

13Fees for rights and privileges#

Subject to section 8, the Minister may fix, by regulation, fees payable in respect of a conferral, by means of a permit or authorization, of a right or privilege provided under this Act.^note

14Fees for providing regulatory processes#

(1)The Minister may fix, by regulation, fees in respect of the provision of regulatory processes under this Act by him or her, the Department of Fisheries and Oceans or any board or agency of the Government of Canada for which he or she has responsibility.

(2)Fees that are fixed under subsection (1) shall in the aggregate not exceed an amount sufficient to compensate Her Majesty in right of Canada for any reasonable expenses incurred by Her Majesty for the purpose of providing regulatory processes under this Act.

^note

15Periodic adjustment#

Regulations made under any of sections 11 to 14 may provide for the periodic adjustment of the fees referred to in those sections.^note

16Proceeds of fees — provinces#

Any fees charged in relation to the issuance of a licence by an employee of a provincial government belong to Her Majesty in right of that province.^note

Lobster Fisheries

17 #

[Repealed, 1991, c. 1, s. 4] (repealed)

18Licences for lobster pounds#

(1)No one shall maintain a pound or enclosure in which lobsters, legally caught during the open season, are retained for sale during the close season at a place where the pound or enclosure is located, or for export therefrom, except under a licence from the Minister, and no lobsters shall be taken from any such pound or enclosure and disposed of during the close season at the place where it is located, except under a certificate from a fishery officer or fishery guardian, setting out the pound or enclosure from which the lobsters were taken and that they had been legally caught during the open season.

(2)Each pound or enclosure referred to in subsection (1) shall be marked with the name of the licensee and the number of his licence, and the marking shall be in black on a white ground, with letters and figures that are at least six inches in height.

(3)The annual fee for a licence referred to in subsection (1) shall be seventy-five dollars.

^note

19 #

[Repealed, 1991, c. 1, s. 5] (repealed)

Prevention of the Escape of Fish

20 #

[Repealed, 2019, c. 14, s. 13] (repealed)

21Devices to prevent escape of fish#

(1)The Minister may authorize the installation and maintenance of fish guards, screens, coverings, netting or other devices in waters to prevent fish held for breeding from escaping or for any other purpose that the Minister considers to be in the public interest.

(2)No person shall damage, remove or authorize the removal of such a fish guard, screen, covering, netting or other device, unless they are authorized to do so by the Minister.

^note

22 #

[Repealed, 2012, c. 19, s. 136] (repealed)

General Prohibitions

23Fishing in limits leased to another prohibited#

No one shall fish for, take, catch or kill fish in any water, along any beach or within any fishery described in any lease or licence, or place, use, draw or set therein any fishing gear or apparatus, except by permission of the occupant under the lease or licence for the time being, or shall disturb or injure any such fishery.^note

23.1Taking cetaceans into captivity#

(1)Subject to subsection (2), no one shall fish for a cetacean with the intent to take it into captivity.

(2)The Minister may, subject to any conditions that he or she may specify, authorize a person to fish for a cetacean with the intent to take it into captivity if he or she is of the opinion that the circumstances so require, including when the cetacean is injured or in distress or is in need of care.

^note

23.2Importation and exportation — cetaceans#

(1)No person shall import into Canada or export from Canada, or attempt to import or export, a living cetacean or sperm, an egg or an embryo of a cetacean, except in accordance with a permit issued under subsection (2).

(2)The Minister may issue a permit authorizing the importation or exportation of a living cetacean or sperm, an egg or an embryo of a cetacean and impose any conditions that the Minister considers appropriate in the permit, if the importation or exportation is for the purpose of

(a)conducting scientific research; or

(b)keeping the cetacean in captivity if it is in the best interests of the cetacean’s welfare to do so.

(3)The Minister may amend, suspend or cancel a permit issued under subsection (2).

^note

23.3Exception to the Criminal Code — scientific research#

(1)Subsection 445.2(2) of the Criminal Code does not apply to a person who conducts scientific research in accordance with a licence issued by the Minister under subsection (2).

(2)The Minister may issue a licence authorizing any person to conduct scientific research with respect to cetaceans and impose any conditions that the Minister considers appropriate in the licence.

^note

23.4Exception to the Criminal Code — cetacean’s captivity in its best interests#

(1)Paragraph 445.2(2)(a) of the Criminal Code does not apply to a person who keeps a cetacean in captivity in the best interests of the cetacean’s welfare in accordance with a licence issued by the Minister under subsection (2).

(2)The Minister may issue a licence authorizing any person to keep a cetacean in captivity in the best interests of the cetacean’s welfare and impose any conditions that the Minister considers appropriate in the licence.

^note

23.5Exception to the Criminal Code — scientific research by federal employees#

Subsection 445.2(2) of the Criminal Code does not apply to the employees of any federal entity set out in Schedules I to V of the Financial Administration Act who are performing their duties or functions in relation to scientific research with respect to cetaceans and to persons who are assisting them.^note

23.6Exception to the Criminal Code — federal employees keeping cetaceans in captivity#

Paragraph 445.2(2)(a) of the Criminal Code does not apply to the employees of any federal entity set out in Schedules I to V of the Financial Administration Act who are performing their duties or functions in relation to the keeping of a cetacean in captivity in the best interests of the cetacean’s welfare and to persons who are assisting them.^note

24Seines, nets, etc., not to obstruct navigation#

Seines, nets or other fishing apparatus shall not be set or used in such a manner or in such a place that they or any equipment that is attached to any of them obstructs the navigation of boats and vessels and no boats or vessels shall destroy or wantonly injure in any way seines, nets or other fishing apparatus lawfully set or used or any equipment that is attached to any of them.^note

25Setting gear during close time#

(1)Subject to the regulations, no person shall place or set any fishing gear or apparatus in any water, along any beach or within any fishery during a close time.

(2)Subject to the regulations and subsection (3), any person who places or sets any fishing gear or apparatus in any water, along any beach or within any fishery shall remove it when the gear or apparatus is not being tended and prior to the commencement of a close time.

(3)A fishery officer may permit fishing gear or apparatus to remain in the water, along a beach or within a fishery after the commencement of a close time for any period the fishery officer considers necessary to permit the removal of the gear or apparatus.

^note

26 #

[Repealed, 2012, c. 19, s. 137] (repealed)

27 #

[Repealed, 2012, c. 19, s. 137] (repealed)

28 #

[Repealed, 2019, c. 14, s. 17] (repealed)

29Obstructing passage of fish or waters#

(1)No person shall, for the purpose of fishing, place, erect, use or maintain any seine, net, weir or other fishing gear or apparatus, or any log, rock or material of any kind that

(a)unduly obstructs the passage of fish in any Canadian fisheries waters, whether subject to any exclusive right of fishery or not; or

(b)obstructs more than two thirds of the width of any river or stream or more than one third of the width of the main channel at low tide of any tidal stream.

(2)The Minister or a fishery officer may order the removal of or remove any seine, net, weir or other fishing gear or apparatus, or any log, rock or material of any kind that, in the opinion of the Minister or fishery officer, results in an obstruction referred to in paragraph (1)(a) or (b).

(3)For the purposes of paragraph (1)(b), if a tidal stream has no main channel at low tide, then the tidal stream’s width is considered to be the width of its main channel.

^note

30 #

[Repealed, 2012, c. 19, s. 138] (repealed)

31Permit required#

(1)No one shall catch, fish for, take, buy, sell, possess or export any fish for the purposes of converting it into fish meal, manure, guano or fertilizer, or for the manufacture or conversion of the fish into oil, fish meal or manure or other fertilizing product, except under authority of the Minister.

(2)The Minister may, by notice published in the Canada Gazette, except any kind or kinds of fish from the operation of all or any part of subsection (1).

^note

32Shark finning#

(1)No person shall engage in the practice of shark finning.

(2)In this section, shark finning means the practice of removing the fins from a shark and discarding the remainder of the shark while at sea.

^note

32.1Importation and exportation#

(1)No person shall import into Canada or export from Canada, or attempt to so import or export, any shark fins or parts of shark fins that are not attached to a shark carcass except in accordance with a permit issued under subsection (2).

(2)The Minister may issue a permit authorizing the importation or exportation into or from Canada of any shark fins or parts of shark fins that are not attached to a shark carcass and impose any conditions that the Minister considers appropriate in the permit

(a)if the importation or exportation is for the purpose of scientific research relating to shark conservation; and

(b)if, in the Minister’s opinion, the scientific research is likely to benefit the survival of any shark species or is required to enhance the chances of survival of any shark species in the wild.

(3)The Minister may amend, suspend or cancel a permit issued under subsection (2).

^note

33Unlawful sale or possession#

No person shall purchase, sell or possess any fish that has been caught in contravention of this Act or the regulations.^note

33.1Definition of “fishing plan”#

(1)In this section, fishing plan means a Nisga’a annual fishing plan, as defined in the Fisheries Chapter of the Nisga’a Final Agreement given effect by the Nisga’a Final Agreement Act, that is approved, or varied and approved, by the Minister in accordance with that Agreement.

(2)Where a fishing plan stipulates that this subsection applies to certain of its provisions relating to persons engaged in harvesting, sale or related activities, no person shall contravene any of those provisions.

(3)No proceedings may be commenced in respect of an offence for the contravention of subsection (2)

(a)except in accordance with an agreement, made under paragraph 93 of the Fisheries Chapter of the Nisga’a Final Agreement, concerning enforcement of federal laws or Nisga’a laws; or

(b)unless the Minister, or a person appointed to a position in the Department of Fisheries and Oceans who is authorized by the Minister, considers such proceedings to be necessary to ensure compliance with the fishing plan.

^note

Fish and Fish Habitat Protection and Pollution Prevention

34Definitions#

(1)The following definitions apply in this section and sections 34.1 to 42.5.

deleterious substance means

(a)any substance that, if added to any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water, or

(b)any water that contains a substance in such quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state that it would, if added to any other water, degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water,

(c)any substance or class of substances prescribed pursuant to paragraph (2)(a),

(d)any water that contains any substance or class of substances in a quantity or concentration that is equal to or in excess of a quantity or concentration prescribed in respect of that substance or class of substances pursuant to paragraph (2)(b), and

(e)any water that has been subjected to a treatment, process or change prescribed pursuant to paragraph (2)(c); (substance nocive)

and without limiting the generality of the foregoing includes

deposit means any discharging, spraying, releasing, spilling, leaking, seeping, pouring, emitting, emptying, throwing, dumping or placing; (immersion ou rejet)

designated project means a project that is designated by regulations made under paragraph 43(1)(i.5) or that belongs to a class of projects that is designated by those regulations and that consists of works, undertakings or activities, including any works, undertakings or activities that the Minister designates to be associated with the project; (projet désigné)

ecologically significant area means an area designated by regulations made under subsection 35.2(2); (zone d’importance écologique)

fish habitat [Repealed, 2012, c. 19, s. 141]

water frequented by fish means Canadian fisheries waters. (eaux où vivent des poissons)

(2)The Governor in Council may make regulations prescribing

(a)substances and classes of substances,

(b)quantities or concentrations of substances and classes of substances in water, and

(c)treatments, processes and changes of water

for the purpose of paragraphs (c) to (e) of the definition deleterious substance in subsection (1).

(3)Any provision of this Act that applies to works, undertakings or activities also applies to the works, undertakings or activities of a designated project, except paragraphs 34.4(2)(a) to (c) and (e) and 35(2)(a) to (c) and (e).

^note

34.1Factors#

(1)Before recommending to the Governor in Council that a regulation be made in respect of section 34.4, 35 or 35.1 or under subsection 35.2(10), 36(5) or (5.1), paragraph 43(1)(b.2) or subsection 43(5) or before exercising any power under subsection 34.3(2), (3) or (7), paragraph 34.4(2)(b) or (c), subsection 34.4(4), paragraph 35(2)(b) or (c) or subsection 35(4), 35.1(3), 35.2(7) or 36(5.2), or under subsection 37(2) with regard to an offence under subsection 40(1), the Minister, prescribed person or prescribed entity, as the case may be, shall consider the following factors:

(a)the contribution to the productivity of relevant fisheries by the fish or fish habitat that is likely to be affected;

(b)fisheries management objectives;

(c)whether there are measures and standards

(i)to avoid the death of fish or to mitigate the extent of their death or offset their death, or

(ii)to avoid, mitigate or offset the harmful alteration, disruption or destruction of fish habitat;

(d)the cumulative effects of the carrying on of the work, undertaking or activity referred to in a recommendation or an exercise of power, in combination with other works, undertakings or activities that have been or are being carried on, on fish and fish habitat;

(e)any fish habitat banks, as defined in section 42.01, that may be affected;

(f)whether any measures and standards to offset the harmful alteration, disruption or destruction of fish habitat give priority to the restoration of degraded fish habitat;

(g)Indigenous knowledge of the Indigenous peoples of Canada that has been provided to the Minister; and

(h)any other factor that the Minister considers relevant.

(2)The obligation to consider the factors set out in subsection (1) applies only to the recommendations and powers that continue to be made or exercised by the Minister after an order is made under subsection 43.2(1) that sets out the powers, duties or functions that the designated minister may exercise or perform.

^note

34.2Standards and codes of practice#

(1)The Minister may establish standards and codes of practice for

(a)the avoidance of death to fish and harmful alteration, disruption or destruction of fish habitat;

(b)the conservation and protection of fish or fish habitat; and

(c)the prevention of pollution.

(2)The standards and codes of practice may specify procedures, practices or standards in relation to works, undertakings and activities during any phase of their construction, operation, modification, decommissioning or abandonment.

(3)Before establishing any standards and codes of practice, the Minister may consult with any provincial government, any Indigenous governing body, any government department or agency or any persons interested in the protection of fish or fish habitat and the prevention of pollution.

(4)The Minister shall publish any standards and codes of practice established under this section, or give notice of them, in the Canada Gazette and he or she may also do so in any other manner that he or she considers appropriate.

^note

34.3Studies, etc. — management or control of obstruction#

(1)If the Minister considers that doing so is necessary to ensure the free passage of fish or the protection of fish or fish habitat, the owner or person who has the charge, management or control of an obstruction or any other thing that is detrimental to fish or fish habitat shall, on the Minister’s request and within the period specified by him or her, conduct studies, analyses, samplings and evaluations, and provide the Minister with any document and other information relating to them, to the obstruction or thing or to the fish or fish habitat that is or is likely to be affected by the obstruction or thing.

(2)If the Minister considers that doing so is necessary to ensure the free passage of fish or the protection of fish or fish habitat, the owner or person who has the charge, management or control of an obstruction or any other thing that is detrimental to fish or fish habitat shall, on the Minister’s order, within the period specified by him or her and in accordance with any of his or her specifications,

(a)remove the obstruction or thing;

(b)construct a fishway;

(c)implement a system of catching fish before the obstruction or thing, transporting them beyond it and releasing them back into the water;

(d)install a fish stop or a diverter;

(e)install a fish guard, a screen, a covering, netting or any other device to prevent the passage of fish into any water intake, ditch, channel or canal;

(f)maintain the flow of water necessary to permit the free passage of fish; or

(g)maintain at all times the characteristics of the water and the water flow downstream of the obstruction or thing that are sufficient for the conservation and protection of the fish and fish habitat.

(3)On the Minister’s order, the owner or person referred to in subsection (2) shall

(a)make any provision that the Minister considers necessary for the free passage of fish or the protection of fish or fish habitat during the carrying on of any activity mentioned in that subsection;

(b)operate and maintain anything referred to in that subsection in a good and effective condition and in accordance with any specifications of the Minister; and

(c)modify or repair it in accordance with any specifications of the Minister.

(4)No person shall

(a)damage or obstruct any fishway constructed or used to enable fish to pass over or around any obstruction;

(b)damage or obstruct any fishway, fish stop or diverter constructed or installed on the Minister’s order;

(c)stop, impede or hinder fish from entering or passing through any fishway, or stop, impede or hinder fish from surmounting any obstruction or leap;

(d)damage, remove or authorize the removal of any fish guard, screen, covering, netting or other device installed on the Minister’s order; or

(e)fish in any manner within 23 m downstream from the lower entrance to any fishway, obstruction or leap.

(5)Despite paragraph (4)(d), a person may remove or authorize the removal of any fish guard, screen, covering, netting or other device installed on the Minister’s order if the removal is required for modification, repair or maintenance.

(6)Orders made under this section are not statutory instruments for the purposes of the Statutory Instruments Act.

(7)The Minister may make regulations respecting the flow of water that is to be maintained to ensure the free passage of fish or the protection of fish or fish habitat.

^note

34.4Death of fish#

(1)No person shall carry on any work, undertaking or activity, other than fishing, that results in the death of fish.

(2)A person may carry on a work, undertaking or activity without contravening subsection (1) if

(a)the work, undertaking or activity is a prescribed work, undertaking or activity or belongs to a prescribed class of works, undertakings or activities, as the case may be, or is carried on in or around prescribed Canadian fisheries waters, and the work, undertaking or activity is carried on in accordance with the prescribed conditions;

(b)the carrying on of the work, undertaking or activity is authorized by the Minister and the work, undertaking or activity is carried on in accordance with the conditions established by the Minister;

(c)the carrying on of the work, undertaking or activity is authorized by a prescribed person or prescribed entity and the work, undertaking or activity is carried on in accordance with the conditions set out in the authorization;

(d)the death results from the doing of anything that is authorized, permitted or required under this Act;

(e)the work, undertaking or activity is carried on in accordance with the regulations;

(f)the work, undertaking or activity is carried on in accordance with a permit issued under subsection 35.1(3), in the case of a work, undertaking or activity that is part of a designated project and that is designated by the Minister under subsection 35.1(2); or

(g)the work, undertaking or activity is a prescribed work, undertaking or activity under paragraph 35.2(10)(a) or belongs to a prescribed class of works, undertakings or activities under that paragraph, as the case may be, and carried on in an ecologically significant area in accordance with an authorization issued under subsection 35.2(7).

(3)The prescribed person or prescribed entity referred to in paragraph (2)(c) may, in addition to the prescribed classes of conditions impose, subject to the regulations, any other conditions that they consider appropriate in the circumstances.

(4)The Minister may, for the purposes of paragraph (2)(a) and subject to paragraph 43(1)(i.1), make regulations prescribing anything that is authorized to be prescribed.

(5)The Minister may amend, suspend or cancel an authorization issued under paragraph (2)(b).

(6)A prescribed person or prescribed entity referred to in paragraph (2)(c) may amend, suspend or cancel an authorization issued under that paragraph.

^note

35Harmful alteration, disruption or destruction of fish habitat#

(1)No person shall carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat.

(2)A person may carry on a work, undertaking or activity without contravening subsection (1) if

(d)the harmful alteration, disruption or destruction results from the doing of anything that is authorized, permitted or required under this Act;

(e)the work, undertaking or activity is carried on in accordance with the regulations;

(g)the work, undertaking or activity is a prescribed work, undertaking or activity under paragraph 35.2(10)(a) or belongs to a prescribed class of works, undertakings or activities under that paragraph, as the case may be, and is carried on in an ecologically significant area in accordance with an authorization issued under subsection 35.2(7).

(4)The Minister may, for the purposes of paragraph (2)(a) and subject to paragraph 43(1)(i.1), make regulations prescribing anything that is authorized to be prescribed.

(5)The Minister may amend, suspend or cancel an authorization issued under paragraph (2)(b).

(6)A prescribed person or prescribed entity referred to in paragraph (2)(c) may amend, suspend or cancel an authorization issued under that paragraph.

^note

35.1Designated project#

(1)The Minister may designate, as a work, undertaking or activity that is associated with a designated project, any work, undertaking or activity that the Minister considers likely to result in the death of fish or the harmful alteration, disruption or destruction of fish habitat.

(2)The Minister shall designate any work, undertaking or activity that is part of a designated project and that the Minister considers likely to result in the death of fish or the harmful alteration, disruption or destruction of fish habitat.

(3)The Minister may issue a permit to carry on any work, undertaking or activity designated under subsection (2) and attach any conditions to it.

(4)No person shall carry on any work, undertaking or activity that is designated under subsection (2) except in accordance with a permit issued under subsection (3).

(5)The Minister may amend, suspend or cancel a permit issued under subsection (3).

^note

35.2Ecologically significant area#

(1)No person shall carry on a work, undertaking or activity prescribed under paragraph (10)(a) or that belongs to a prescribed class under that paragraph, in an ecologically significant area except in accordance with an authorization issued under subsection (7).

(2)The Governor in Council may, on the recommendation of the Minister, make regulations designating ecologically significant areas.

(3)Any person who proposes to carry on a work, undertaking or activity referred to in subsection (1) in an ecologically significant area shall provide the Minister with any document and other information that is required by regulation in respect of the prescribed work, undertaking or activity, or the water, place, fish or fish habitat that is likely to be affected by the prescribed work, undertaking or activity.

(4)Regulations made for the purpose of subsection (3) do not prevent the Minister from requesting additional information that he or she considers necessary in the circumstances.

(5)Every person who is required to provide any additional information must provide it within the time and in the manner that the Minister specifies.

(6)The Minister may, on request in writing from any person who is required to provide any additional information, extend the specified time.

(7)If the Minister is satisfied, after having reviewed any document and other information provided under subsection (3) or (4), that avoidance and mitigation measures may be implemented to achieve the prescribed objectives for the conservation and protection of fish and fish habitat, he or she may authorize, subject to the regulations made under subsection (10), the carrying on of the work, undertaking or activity referred to in subsection (1) in an ecologically significant area, on any conditions that he or she considers appropriate.

(8)The Minister may amend, suspend or cancel an authorization issued under subsection (7).

(9)The Minister shall, as soon as feasible, prepare a fish habitat restoration plan for an ecologically significant area, if he or she is of the opinion that fish habitat restoration in that ecologically significant area is required in order to meet any prescribed objectives for the conservation and protection of fish and fish habitat.

(10)The Governor in Council may, on the Minister’s recommendation, make regulations

(a)prescribing works, undertakings or activities or classes of works, undertakings or activities, for the purposes of this section;

(b)respecting any document or other information that is required to be provided under subsection (3), including the manner in which and the time within which it is to be provided;

(c)respecting the objectives for the conservation and protection of fish and fish habitat in an ecologically significant area;

(d)prescribing works, undertakings or activities or classes of works, undertakings or activities that the Minister shall not authorize under paragraphs 34.4(2)(b) and 35(2)(b) to be carried on in an ecologically significant area;

(e)prescribing conditions under which and requirements subject to which the Minister may issue an authorization under subsection (7);

(f)respecting the manner and circumstances relating to the amendment, suspension or cancellation of an authorization referred to in subsection (7); and

(g)respecting the process by which a person may request an amendment, suspension or cancellation of an authorization under subsection (7).

^note

36Throwing overboard of certain substances prohibited#

(1)No one shall

(a)throw overboard ballast, coal ashes, stones or other prejudicial or deleterious substances in any river, harbour or roadstead, or in any water where fishing is carried on;

(b)leave or deposit or cause to be thrown, left or deposited, on the shore, beach or bank of any water or on the beach between high and low water mark, remains or offal of fish or of marine animals; or

(c)leave decayed or decaying fish in any net or other fishing apparatus.

(2)Remains or offal described in subsection (1) may be buried ashore, above high water mark.

(3)Subject to subsection (4), no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.

(4)No person contravenes subsection (3) by depositing or permitting the deposit in any water or place of

(a)waste or pollutant of a type, in a quantity and under conditions authorized by regulations applicable to that water or place made by the Governor in Council under any Act other than this Act;

(b)a deleterious substance of a class and under conditions — which may include conditions with respect to quantity or concentration — authorized under regulations made under subsection (5) applicable to that water or place or to any work or undertaking or class of works or undertakings; or

(c)a deleterious substance the deposit of which is authorized by regulations made under subsection (5.2) and that is deposited in accordance with those regulations.

(5)The Governor in Council may make regulations for the purpose of paragraph (4)(b) prescribing

(a)the deleterious substances or classes thereof authorized to be deposited notwithstanding subsection (3);

(b)the waters or places or classes thereof where any deleterious substances or classes thereof referred to in paragraph (a) are authorized to be deposited;

(c)the works or undertakings or classes thereof in the course or conduct of which any deleterious substances or classes thereof referred to in paragraph (a) are authorized to be deposited;

(d)the quantities or concentrations of any deleterious substances or classes thereof referred to in paragraph (a) that are authorized to be deposited;

(e)the conditions or circumstances under which and the requirements subject to which any deleterious substances or classes thereof referred to in paragraph (a) or any quantities or concentrations of those deleterious substances or classes thereof are authorized to be deposited in any waters or places or classes thereof referred to in paragraph (b) or in the course or conduct of any works or undertakings or classes thereof referred to in paragraph (c); and

(f)the persons who may authorize the deposit of any deleterious substances or classes thereof in the absence of any other authority, and the conditions or circumstances under which and requirements subject to which those persons may grant the authorization.

(5.1)The Governor in Council may make regulations establishing conditions for the exercise of the Minister’s regulation-making power under subsection (5.2).

(5.2)If regulations have been made under subsection (5.1), the Minister may make regulations

(a)authorizing the deposit of deleterious substances specified in the regulations, or substances falling within a class of deleterious substances specified in the regulations;

(b)authorizing the deposit of deleterious substances into waters or places falling within a class of waters or places;

(c)authorizing the deposit of deleterious substances resulting from a work, undertaking or activity falling within a class of works, undertakings or activities;

(d)establishing conditions, which may include conditions with respect to quantity or concentration, for the deposit of deleterious substances referred to in paragraphs (a) to (c); and

(e)establishing, for the purposes of paragraphs (a) to (c), classes of

(i)deleterious substances,

(ii)waters and places, and

(iii)works, undertakings and activities.

(6)A person authorized to deposit a deleterious substance by or under regulations made under subsection (5) or (5.2) shall, when directed by the Minister, despite any regulations made under paragraph (5)(e) or (5.2)(d) or any conditions set out in an authorization made under paragraph (5)(f), conduct any sampling, analyses, tests, measurements or monitoring, install or operate any equipment or comply with any procedures, and report any information, that is required by the Minister in order to determine whether the person is depositing the deleterious substance in the manner authorized.

^note

37Minister may require plans and specifications#

(1)If a person carries on or proposes to carry on any work, undertaking or activity that results or is likely to result in the death of fish, in the harmful alteration, disruption or destruction of fish habitat or in the deposit of a deleterious substance in water frequented by fish or in any place under any conditions where that deleterious substance or any other deleterious substance that results from the deposit of that deleterious substance may enter any such waters, the person shall, on the request of the Minister — or without request in the manner and circumstances prescribed by regulations made under paragraph (3)(a) — provide him or her with any documents — plans, specifications, studies, procedures, schedules, analyses, samples, evaluations — and any other information relating to the work, undertaking or activity, or to the water, place, fish or fish habitat that is or is likely to be affected by the work, undertaking or activity, that will enable the Minister to determine

(a)whether the work, undertaking or activity results or is likely to result in the death of fish that constitutes or would constitute an offence under subsection 40(1) and what measures, if any, would prevent that death or mitigate the extent of death;

(a.1)whether the work, undertaking or activity results or is likely to result in the harmful alteration, disruption or destruction of fish habitat that constitutes or would constitute an offence under subsection 40(1) and what measures, if any, would prevent that result or mitigate its effects; or

(b)whether there is or is likely to be a deposit of a deleterious substance by reason of the work, undertaking or activity that constitutes or would constitute an offence under subsection 40(2) and what measures, if any, would prevent that deposit or mitigate its effects.

(1.1)[Repealed, 2019, c. 14, s. 24] (repealed)

(2)If, after reviewing any document and other information provided under subsection (1) and affording the persons who provided it a reasonable opportunity to make representations, the Minister is of the opinion that an offence under subsection 40(1) or (2) is being or is likely to be committed, he or she may, by order, subject to regulations made under paragraph (3)(b),

(a)require any modifications or additions to the work, undertaking or activity or any modifications to any plans, specifications, procedures or schedules relating to it that the Minister considers necessary in the circumstances, or

(b)restrict the carrying on of the work, undertaking or activity.

The Minister may personally direct the closing of the work or undertaking or the ending of the activity for any period that he or she considers necessary in the circumstances.

(3)The Governor in Council may make regulations

(a)prescribing the manner and circumstances in which any document or other information is to be provided to the Minister without request under subsection (1); and

(b)prescribing the manner and circumstances in which the Minister may make orders under subsection (2) and the terms of the orders.

(c)[Repealed, 2019, c. 14, s. 24] (repealed)

(4)If the Minister proposes to make an order under subsection (2), he or she shall offer to consult with the governments of any provinces that he or she considers to be interested in the proposed order and with any departments or agencies of the Government of Canada that he or she considers appropriate.

(5)Nothing in subsection (4) prevents the Minister from making an interim order under subsection (2) without the offer of consultation referred to in subsection (4) if he or she considers that immediate action is necessary.

(6)Orders made under this section are not statutory instruments for the purposes of the Statutory Instruments Act.

^note

38Power to designate#

(1)The Minister may designate persons or classes of persons as inspectors for the purposes of the administration and enforcement of this Act and may limit in any manner he or she considers appropriate the powers that an inspector may exercise under this Act.

(2)The Minister shall provide every inspector with a certificate of designation and on entering any place or premises referred to in subsection (3) an inspector shall, if so required, show the certificate to the person in charge.

(3)An inspector may, for a purpose related to verifying compliance with this Act, enter any place or premises, including a vehicle or vessel — other than a private dwelling-place or any part of any place or premises, including a vehicle or vessel, used as a permanent or temporary private dwelling-place — in which the inspector believes on reasonable grounds that

(a)there is anything that is detrimental to fish habitat; or

(b)there has been carried on, is being carried on or is likely to be carried on any work, undertaking or activity resulting or likely to result in

(i)the death of fish,

(i.1)the harmful alteration, disruption or destruction of fish habitat, or

(ii)the deposit of a substance in water frequented by fish or in any place under any conditions where the substance or any other substance that results from the deposit of the substance may enter any such water.

(3.1)The inspector may, for a purpose related to verifying compliance with this Act, examine any substance or product in the place or premises, take samples of it and conduct tests and measurements.

(3.2) to (3.5)[Repealed, 2012, c. 19, s. 145] (repealed)

(4)Every person shall without delay notify an inspector, a fishery officer, a fishery guardian or an authority prescribed by the regulations of the death of fish that is not authorized under this Act, or of a serious and imminent danger of such occurrence, if the person at any material time

(a)owns or has the charge, management or control of the work, undertaking or activity that resulted in the occurrence or the danger of the occurrence; or

(b)causes or contributes to the occurrence or the danger of the occurrence.

(4.1)Every person shall without delay notify an inspector, a fishery officer, a fishery guardian or an authority prescribed by the regulations of a harmful alteration, disruption or destruction of fish habitat that is not authorized under this Act, or of a serious and imminent danger of such an occurrence, if the person at any material time

(a)owns or has the charge, management or control of the work, undertaking or activity that resulted in the occurrence or the danger of the occurrence; or

(b)causes or contributes to the occurrence or the danger of the occurrence.

(5)If there occurs a deposit of a deleterious substance in water frequented by fish that is not authorized under this Act, or if there is a serious and imminent danger of such an occurrence, and detriment to fish habitat or fish or to the use by humans of fish results or may reasonably be expected to result from the occurrence, then every person shall without delay notify an inspector, a fishery officer, a fishery guardian or an authority prescribed by the regulations if the person at any material time

(a)owns or has the charge, management or control of

(i)the deleterious substance, or

(ii)the work, undertaking or activity that resulted in the deposit or the danger of the deposit; or

(b)causes or contributes to the occurrence or the danger of the occurrence.

(6)Any person described in paragraph (4)(a) or (b), (4.1)(a) or (b) or (5)(a) or (b) shall, as soon as feasible, take all reasonable measures consistent with public safety and with the conservation and protection of fish and fish habitat to prevent the occurrence or to counteract, mitigate or remedy any adverse effects that result from the occurrence or might reasonably be expected to result from it.

(7)As soon as feasible after the occurrence or after learning of the danger of the occurrence, the person shall provide an inspector, a fishery officer, a fishery guardian or an authority prescribed by the regulations with a written report on the occurrence or danger of the occurrence.

(7.1)If an inspector or fishery officer, whether or not they have been notified under subsection (4), (4.1) or (5) or provided with a report under subsection (7), is satisfied on reasonable grounds that immediate action is necessary in order to take any measures referred to in subsection (6), the inspector or officer may, subject to subsection (7.2), take any of those measures at the expense of any person described in paragraph (4)(a) or (b), (4.1)(a) or (b) or (5)(a) or (b) or direct that person to take the measures at their expense.

(7.2)Any direction of an inspector or fishery officer under this section that is inconsistent with any direction under the Canada Shipping Act, 2001 is void to the extent of the inconsistency.

(8)For the purposes of subsections (4) to (7.1), any inspector or other person may enter and have access through any place or premises, including a vehicle or vessel — other than a private dwelling-place or any part of any place or premises, including a vehicle or vessel, used as a permanent or temporary private dwelling-place — and may take all reasonable measures in order to ensure that those subsections are complied with. However, nothing in this subsection relieves any person from liability at law for illegal or negligent acts or omissions or for loss or damage caused to others by the entry, access or measure.

(9)The Governor in Council may make regulations prescribing

(a)the authority for the purposes of subsection (4), (4.1) or (5), the manner in which the notification under those subsections is to be made, the information to be contained in the notification and the circumstances in which no notification need be made;

(b)the authority for the purposes of subsection (7), the manner in which the report under that subsection is to be made, the information to be contained in the report and the circumstances in which no report need be made;

(c)the manner in which inspectors and fishery officers may take any measures or give any directions under subsection (7.1) and the conditions to which those measures are subject;

(d)the manner and circumstances in which any measures taken or directions given under subsection (7.1) may be reviewed, rescinded or varied; and

(e)any other matters necessary for or incidental to carrying out the purposes and provisions of this section.

(10)The owner or person in charge of any place or premises entered by an inspector under subsection (3) and every person found there shall give the inspector all reasonable assistance to enable the inspector to carry out their duties and functions under this section and shall provide the inspector with any information with respect to verifying compliance with this Act that the inspector requires.

(11)[Repealed, 2019, c. 14, s. 25] (repealed)

(12)[Repealed, 2019, c. 14, s. 25] (repealed)

(13)[Repealed, 2019, c. 14, s. 25] (repealed)

^note

39Search#

(1)A fishery officer or inspector who has a warrant issued under subsection (2) in which the officer or inspector is named may enter any place or premises, including a vehicle or vessel — other than a private dwelling-place or any part of any place or premises, including a vehicle or vessel, used as a permanent or temporary private dwelling-place — in which the officer or inspector has reasonable grounds to believe that an offence under subsection 40(1), (2) or (3) is being or has been committed and search the place, premises, vehicle or vessel for evidence of the offence.

(2)On ex parte application, a justice of the peace may issue a warrant authorizing any fishery officer or inspector named in the warrant to enter and search any place or premises referred to in subsection (1), subject to any conditions that are specified in the warrant, if the justice is satisfied by information on oath that there are reasonable grounds to believe that there is in the place or premises

(a)anything on or in respect of which an offence under subsection 40(1), (2) or (3) is being or has been committed; or

(b)anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence under subsection 40(1), (2) or (3).

(3)In executing a warrant issued under subsection (2), an inspector named in the warrant may use force only if they are accompanied by a peace officer and the use of force has been specifically authorized in the warrant.

(4)A fishery officer or inspector may exercise the powers of entry and search referred to in subsection (1) without a warrant issued under subsection (2) if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would not be practical to obtain the warrant.

(5)For the purposes of subsection (4), exigent circumstances include circumstances in which the delay necessary to obtain a warrant would result in danger to human life or safety or the loss or destruction of evidence.

^note

39.1Exercise of powers#

Every power that may be exercised in Canada by an inspector under this Act may be exercised anywhere this Act applies.^note

40Offence and punishment#

(1)Every person who contravenes subsection 34.4(1) or 35(1) is guilty of an offence and liable

(a)on conviction on indictment,

(i)in the case of an individual,

(A)for a first offence, to a fine of not less than $15,000 and not more than $1,000,000, and

(B)for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000, or to imprisonment for a term not exceeding three years, or to both,

(ii)in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),

(A)for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and

(B)for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and

(iii)in the case of a corporation that the court has determined to be a small revenue corporation,

(A)for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and

(B)for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or

(b)on summary conviction,

(i)in the case of an individual,

(A)for a first offence, to a fine of not less than $5,000 and not more than $300,000, and

(B)for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000, or to imprisonment for a term not exceeding six months, or to both,

(ii)in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),

(A)for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and

(B)for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000, and

(iii)in the case of a corporation that the court has determined to be a small revenue corporation,

(A)for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and

(B)for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.

(2)Every person who contravenes subsection 36(1) or (3) is guilty of an offence and liable