C-5 2 37 51 Elizabeth II 2002

An Act respecting the protection of wildlife species at risk in Canada

Species at Risk Act

Species at Risk 2002 12 12 29 2002 90106

SUMMARY

The purposes of this enactment are to prevent Canadian indigenous species, subspecies and distinct populations of wildlife from becoming extirpated or extinct, to provide for the recovery of endangered or threatened species, to encourage the management of other species to prevent them from becoming at risk.

This enactment establishes the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) as an independent body of experts responsible for assessing and identifying species at risk. It provides that COSEWIC’s assessments are to be reported to the Minister of the Environment and to the Canadian Endangered Species Conservation Council and it authorizes the Governor in Council to establish by regulation the official list of species at risk based on that process.

It requires that the best available knowledge be used to define long- and short-term objectives in a recovery strategy for endangered and threatened species and it provides for action plans to identify specific actions.

It creates prohibitions to protect listed threatened and endangered species and their critical habitat.

It recognizes that compensation may be needed to ensure fairness following the imposition of the critical habitat prohibitions.

It creates a public registry to assist in making documents under the Act more accessible to the public.

It is consistent with Aboriginal and treaty rights and respects the authority of other federal ministers and provincial governments.

Preamble

Recognizing that

Canada’s natural heritage is an integral part of our national identity and history,

wildlife, in all its forms, has value in and of itself and is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons,

Canadian wildlife species and ecosystems are also part of the world’s heritage and the Government of Canada has ratified the United Nations Convention on the Conservation of Biological Diversity,

providing legal protection for species at risk will complement existing legislation and will, in part, meet Canada’s commitments under that Convention,

the Government of Canada is committed to conserving biological diversity and to the principle that, if there are threats of serious or irreversible damage to a wildlife species, cost-effective measures to prevent the reduction or loss of the species should not be postponed for a lack of full scientific certainty,

responsibility for the conservation of wildlife in Canada is shared among the governments in this country and that it is important for them to work cooperatively to pursue the establishment of complementary legislation and programs for the protection and recovery of species at risk in Canada,

it is important that there be cooperation between the governments in this country to maintain and strengthen national standards of environmental conservation and that the Government of Canada is committed to the principles set out in intergovernmental agreements respecting environmental conservation,

the Canadian Endangered Species Conservation Council is to provide national leadership for the protection of species at risk, including the provision of general direction to the Committee on the Status of Endangered Wildlife in Canada in respect of that Committee’s activities and general directions in respect of the development, coordination and implementation of recovery efforts,

the roles of the aboriginal peoples of Canada and of wildlife management boards established under land claims agreements in the conservation of wildlife in this country are essential,

all Canadians have a role to play in the conservation of wildlife in this country, including the prevention of wildlife species from becoming extirpated or extinct,

there will be circumstances under which the cost of conserving species at risk should be shared,

the conservation efforts of individual Canadians and communities should be encouraged and supported,

stewardship activities contributing to the conservation of wildlife species and their habitat should be supported to prevent species from becoming at risk,

community knowledge and interests, including socio-economic interests, should be considered in developing and implementing recovery measures,

the traditional knowledge of the aboriginal peoples of Canada should be considered in the assessment of which species may be at risk and in developing and implementing recovery measures,

knowledge of wildlife species and ecosystems is critical to their conservation,

the habitat of species at risk is key to their conservation, and

Canada’s protected areas, especially national parks, are vital to the protection and recovery of species at risk,

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Short title

This Act may be cited as the Species at Risk Act .

INTERPRETATION

Definitions

(1) The

definitions in this subsection apply in this Act.

action plan

plan d’action

action plan means an action plan included in the public registry under subsection 50(3) and includes any amendment to it included in the public registry under

section 52.

alternative measures

mesures de rechange

alternative measures means measures, other than judicial proceedings, that are used to deal with a person who is alleged to have committed an offence.

aquatic species

espèce aquatique

aquatic species means a wildlife species that is a fish, as defined in

section 2 of the Fisheries Act , or a marine plant, as defined in

section 47 of that Act.

Attorney General

procureur général

Attorney General means the Attorney General of Canada or, for the purposes of sections 108 to 113, an agent of the Attorney General of Canada.

Canadian Endangered Species Conservation Council

Conseil canadien pour la conservation des espèces en péril

Canadian Endangered Species Conservation Council means the Council referred to in subsection 7(1).

competent minister

ministre compétent

competent minister means

(

a) the Minister of Canadian Heritage with respect to individuals in or on federal lands that are administered by that Minister and that are national parks, national historic sites or other protected heritage areas as those expressions are defined in subsection 2(1) of the Parks Canada Agency Act ;

(

b) the Minister of Fisheries and Oceans with respect to aquatic species, other than individuals mentioned in paragraph ( a ); and

(

c) the Minister of the Environment with respect to all other individuals.

conveyance

moyen de transport

conveyance means a vehicle, aircraft or water-borne craft or any other contrivance that is used to move persons or goods.

COSEWIC

COSEPAC

COSEWIC means the Committee on the Status of Endangered Wildlife in Canada established by

section 14.

critical habitat

habitat essentiel

critical habitat means the habitat that is necessary for the survival or recovery of a listed wildlife species and that is identified as the species’ critical habitat in the recovery strategy or in an action plan for the species.

emergency order

décret d’urgence

emergency order means an order made under

section 80.

endangered species

espèce en voie de disparition

endangered species means a wildlife species that is facing imminent extirpation or extinction.

extirpated species

espèce disparue du pays

extirpated species means a wildlife species that no longer exists in the wild in Canada, but exists elsewhere in the wild.

federal land

territoire domanial

federal land means

(

a) land that belongs to Her Majesty in right of Canada, or that Her Majesty in right of Canada has the power to dispose of, and all waters on and airspace above that land;

(

b) the internal waters of Canada and the territorial sea of Canada; and

(

c) reserves and any other lands that are set apart for the use and benefit of a band under the Indian Act , and all waters on and airspace above those reserves and lands.

habitat

habitat

habitat means

(

a) in respect of aquatic species, spawning grounds and nursery, rearing, food supply, migration and any other areas on which aquatic species depend directly or indirectly in order to carry out their life processes, or areas where aquatic species formerly occurred and have the potential to be reintroduced; and

(

b) in respect of other wildlife species, the area or type of site where an individual or wildlife species naturally occurs or depends on directly or indirectly in order to carry out its life processes or formerly occurred and has the potential to be reintroduced.

land claims agreement

accord sur des revendications territoriales

land claims agreement means a land claims agreement within the meaning of

section 35 of the Constitution Act, 1982 .

treaty

traité

treaty means a treaty within the meaning of

section 35 of the Constitution Act, 1982 .

wildlife management board

conseil de gestion des ressources fauniques

wildlife management board means any board or other body established under a land claims agreement that is authorized by the agreement to perform functions in respect of wildlife species.

wildlife species

espèce sauvage

wildlife species means a species, subspecies, variety or geographically or genetically distinct population of animal, plant or other organism, other than a bacterium or virus, that is wild by nature and

List

liste

List means the List of Wildlife Species at Risk set out in

Schedule 1.

listed

inscrite

listed means listed on the List.

Minister

ministre

Minister means the Minister of the Environment.

offence

infraction

offence means an offence under this Act.

provincial minister

ministre provincial

provincial minister means any minister of the government of a province who is responsible for the conservation and management of a wildlife species in that province.

public registry

registre

public registry means the registry established under

section 120.

recovery strategy

programme de rétablissement

recovery strategy means a recovery strategy included in the public registry under subsection 43(2), and includes any amendment to it included in the public registry under

section 45.

residence

résidence

residence means a dwelling-place, such as a den, nest or other similar area or place, that is occupied or habitually occupied by one or more individuals during all or part of their life cycles, including breeding, rearing, staging, wintering, feeding or hibernating.

sell

vente

sell includes to offer for sale or lease, have in possession for sale or lease or deliver for sale or lease.

species at risk

espèce en péril

species at risk means an extirpated, endangered or threatened species or a species of special concern.

species of special concern

espèce préoccupante

species of special concern means a wildlife species that may become a threatened or an endangered species because of a combination of biological characteristics and identified threats.

status report

rapport de situation

status report means a report, prepared in accordance with the requirements of regulations made under subsection 21(2), that contains a

summary of the best available information on the status of a wildlife species, including scientific knowledge, community knowledge and aboriginal traditional knowledge.

territorial minister

ministre territorial

territorial minister means any minister of the government of a territory who is responsible for the conservation and management of a wildlife species in that territory.

threatened species

espèce menacée

threatened species means a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction.

individual

individu

individual means an individual of a wildlife species, whether living or dead, at any developmental stage and includes larvae, embryos, eggs, sperm, seeds, pollen, spores and asexual propagules.

(

a) is native to Canada; or

(

b) has extended its range into Canada without human intervention and has been present in Canada for at least 50 years.

Deeming

(2) For the purposes of the definition wildlife species in subsection (1), a species, subspecies, variety or geographically or genetically distinct population is, in the absence of evidence to the contrary, presumed to have been present in Canada for at least 50 years.

Competent minister

(3) A reference to a competent minister in any provision of this Act is to be read as a reference to the competent minister in respect of the wildlife species, or the individuals of the wildlife species, to which the provision relates.

Aboriginal and treaty rights

For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in

section 35 of the Constitution Act, 1982.

Sedentary living organisms

(1) This Act also applies to sedentary living organisms on or under the continental shelf of Canada outside the exclusive economic zone.

Meaning of sedentary

(2) For the purpose of subsection (1), a living organism is sedentary if it is, at the harvestable stage, either immobile on or under the seabed or is unable to move except in constant physical contact with the seabed or subsoil.

HER MAJESTY

Binding on Her Majesty

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

PURPOSES

Purposes

The purposes of this Act are to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity and to manage species of special concern to prevent them from becoming endangered or threatened.

CANADIAN ENDANGERED SPECIES CONSERVATION COUNCIL

Composition

(1) The Canadian Endangered Species Conservation Council consists of the Minister of the Environment, the Minister of Fisheries and Oceans, the Minister of Canadian Heritage and ministers of the government of a province or a territory who are responsible for the conservation and management of a wildlife species in that province or territory.

Role

(2) The role of the Canadian Endangered Species Conservation Council is to

(

a) provide general direction on the activities of COSEWIC, the preparation of recovery strategies and the preparation and implementation of action plans; and

(

b) coordinate the activities of the various governments represented on the Council relating to the protection of species at risk.

ADMINISTRATION OF ACT

Responsibility of Minister

(1) The Minister is responsible for the administration of this Act, except in so far as this Act gives responsibility to another minister.

Delegation

(2) The Minister, the Minister of Canadian Heritage or the Minister of Fisheries and Oceans may, after consultation with the other two ministers, delegate to any minister of the Crown in right of Canada or of a province or to any person who is employed by the Government of Canada, the government of a province or any other government in Canada any of that Minister’s powers or functions under this Act, relating to its enforcement.

Agreement and reporting obligation

(3) The delegation must be the subject of an agreement between the delegating minister and the delegate and the agreement must provide that the delegate is to prepare an annual report for the delegating minister on the activities undertaken under the agreement. A copy of the agreement must be included in the public registry within 45 days after it is entered into, and a copy of every annual report must be included in the public registry within 45 days after it is received by the delegating minister.

National Aboriginal Council on Species at Risk

8.1

The Minister shall establish a Council, to be known as the National Aboriginal Council on Species at Risk, consisting of six representatives of the aboriginal peoples of Canada selected by the Minister based upon recommendations from aboriginal organizations that the Minister considers appropriate. The role of the Council is to

(

a) advise the Minister on the administration of this Act; and

(

b) provide advice and recommendations to the Canadian Endangered Species Conservation Council.

Advisory committees to assist Minister

(1) The Minister may, after consultation with the Minister of Canadian Heritage and the Minister of Fisheries and Oceans, establish one or more committees to advise the Minister on the administration of this Act.

Advisory committees to assist Council

(2) The Minister may, after consultation with the Minister of Canadian Heritage, the Minister of Fisheries and Oceans and the Canadian Endangered Species Conservation Council, establish one or more committees to advise the Council on matters related to the Council’s role.

Administrative agreements

A competent minister may, after consultation with every other competent minister, enter into an agreement with any government in Canada, organization or wildlife management board with respect to the administration of any provision of this Act for which that competent minister has responsibility, including the preparation and implementation of recovery strategies, action plans and management plans.

STEWARDSHIP ACTION PLAN

Stewardship action plan

10.1

The Minister, after consultation with the Canadian Endangered Species Conservation Council, may establish a stewardship action plan that creates incentives and other measures to support voluntary stewardship actions taken by any government in Canada, organization or person. A copy of the stewardship action plan must be included in the public registry.

Contents

10.2

The stewardship action plan must include, but is not limited to, commitments to

(

a) regularly examine incentives and programs that support actions taken by persons to protect species at risk;

(

b) provide information and increase public awareness about species at risk;

(

c) methods for sharing information about species at risk, including community and aboriginal traditional knowledge, that respect, preserve and maintain knowledge and promote their wider application with the approval of the holders of such knowledge, with other governments and persons;

(

d) create awards and recognition programs;

(

e) provide information respecting programs related to stewardship agreements, land conservation easements and other such agreements; and

(

f) provide information relating to the technical and scientific support available to persons engaged in stewardship activities.

STEWARDSHIP

Conservation agreements — species at risk

(1) A competent minister may, after consultation with every other competent minister, and with the Canadian Endangered Species Conservation Council or any of its members if he or she considers it appropriate to do so, enter into a conservation agreement with any government in Canada, organization or person to benefit a species at risk or enhance its survival in the wild.

Contents

(2) The agreement must provide for the taking of conservation measures and any other measures consistent with the purposes of this Act, and may include measures with respect to

(

a) monitoring the status of the species;

(

b) developing and implementing education and public awareness programs;

(

c) developing and implementing recovery strategies, action plans and management plans;

(

d) protecting the species’ habitat, including its critical habitat; or

(

e) undertaking research projects in support of recovery efforts for the species.

Conservation agreements — other species

(1) A competent minister may, after consultation with every other competent minister, and with the Canadian Endangered Species Conservation Council or any of its members if he or she considers it appropriate to do so, enter into an agreement with any government in Canada, organization or person to provide for the conservation of a wildlife species that is not a species at risk.

Contents

(2) The agreement may provide for the taking of conservation measures and any other measures consistent with the purposes of this Act, including measures with respect to

(

a) monitoring the status of the species;

(

b) developing and implementing education and public awareness programs;

(

c) protecting the species’ habitat; and

(

d) preventing the species from becoming a species at risk.

Funding agreements

(1) A competent minister may enter into an agreement with any government in Canada, organization or person to provide for the payment of contributions towards the costs of programs and measures for the conservation of wildlife species, including programs and measures under an agreement entered into under subsection 11(1) or 12(1).

Provisions to be included

(2) The agreement must specify

(

a) the contribution towards the cost of the program or measure that is payable by any party and the time or times at which any amounts under the agreement will be paid;

(

b) the authority or person who will be responsible for operating and maintaining the program or measure or any part of it;

(

c) the proportions of any revenue from the program or measure that is payable to the parties; and

(

d) the terms and conditions governing the operation and maintenance of the program or measure.

WILDLIFE SPECIES LISTING PROCESS

Committee on the Status of Endangered Wildlife in Canada

Establishment

The Committee on the Status of Endangered Wildlife in Canada is hereby established.

Functions

(1) The functions of COSEWIC are to

(

a) assess the status of each wildlife species considered by COSEWIC to be at risk and, as part of the assessment, identify existing and potential threats to the species and

(

i) classify the species as extinct, extirpated, endangered, threatened or of special concern,

(ii)

indicate that COSEWIC does not have sufficient information to classify the species, or

(iii)

indicate that the species is not currently at risk;

(

b) determine when wildlife species are to be assessed, with priority given to those more likely to become extinct;

(

c) conduct a new assessment of the status of species at risk and, if appropriate, reclassify or declassify them;

( c.1 )

indicate in the assessment whether the wildlife species migrates across Canada’s boundary or has a range extending across Canada’s boundary;

(

d) develop and periodically review criteria for assessing the status of wildlife species and for classifying them and recommend the criteria to the Minister and the Canadian Endangered Species Conservation Council; and

(

e) provide advice to the Minister and the Canadian Endangered Species Conservation Council and perform any other functions that the Minister, after consultation with that Council, may assign.

Best information and knowledge

(2) COSEWIC must carry out its functions on the basis of the best available information on the biological status of a species, including scientific knowledge, community knowledge and aboriginal traditional knowledge.

Treaties and land claims agreements

(3) COSEWIC must take into account any applicable provisions of treaty and land claims agreements when carrying out its functions.

Composition

(1) COSEWIC is to be composed of members appointed by the Minister after consultation with the Canadian Endangered Species Conservation Council and with any experts and expert bodies, such as the Royal Society of Canada, that the Minister considers to have relevant expertise.

Qualifications of members

(2) Each member must have expertise drawn from a discipline such as conservation biology, population dynamics, taxonomy, systematics or genetics or from community knowledge or aboriginal traditional knowledge of the conservation of wildlife species.

Term of appointment

(3) The members are to be appointed to hold office for renewable terms of not more than four years.

Not part of the public service of Canada

(4) The members are not, because of being a member, part of the public service of Canada.

Remuneration and expenses

(5) The members may be paid remuneration and expenses for their services in amounts that the Minister may set.

Discretion

(6) Each member of COSEWIC shall exercise his or her discretion in an independent manner.

Regulations and guidelines

The Minister may, after consultation with the Canadian Endangered Species Conservation Council and COSEWIC, establish regulations or guidelines respecting the appointment of members and the carrying out of COSEWIC’s functions.

Subcommittees

(1) COSEWIC must establish subcommittees of specialists to assist in the preparation and review of status reports on wildlife species considered to be at risk, including subcommittees specializing in groups of wildlife species and a subcommittee specializing in aboriginal traditional knowledge, and it may establish other subcommittees to advise it or to exercise or perform any of its functions.

Membership

(2) Each subcommittee must be presided over by a member of COSEWIC, but the subcommittee may include persons who are not members of COSEWIC.

Aboriginal traditional knowledge subcommittee

(3) Subject to subsection (2), the chairperson and members of the aboriginal traditional knowledge subcommittee must be appointed by the Minister after consultation with any aboriginal organization he or she considers appropriate.

Rules

COSEWIC may make rules respecting the holding of meetings and the general conduct of its activities, including rules respecting

(

a) the selection of persons to chair its meetings; and

(

b) the meetings and activities of any of its subcommittees.

Staff and facilities

The Minister must provide COSEWIC with any professional, technical, secretarial, clerical and other assistance, and any facilities and supplies, that, in his or her opinion, are necessary to carry out its functions.

Status reports

(1) COSEWIC’s assessment of the status of a wildlife species must be based on a status report on the species that COSEWIC either has had prepared or has received with an application.

Content

(2) The Minister may, after consultation with COSEWIC, the Minister of Canadian Heritage and the Minister of Fisheries and Oceans, make regulations establishing the content of status reports.

Applications

(1) Any person may apply to COSEWIC for an assessment of the status of a wildlife species.

Regulations

(2) The Minister may, after consultation with the Minister of Canadian Heritage, the Minister of Fisheries and Oceans and the Canadian Endangered Species Conservation Council, make regulations respecting the making of applications to COSEWIC under subsection (1) and the dealing with of those applications by COSEWIC.

Time for assessment

(1) COSEWIC must assess the status of a wildlife species within one year after it receives a status report on the species, and it must provide reasons for its assessment.

Notification of applicant

(2) If the assessment results from an application, COSEWIC must notify the applicant of the assessment and the reasons.

Reviews and Reports

Review of classifications

COSEWIC must review the classification of each species at risk at least once every 10 years, or at any time if it has reason to believe that the status of the species has changed significantly.

Copies to Minister and Council

(1) When COSEWIC completes an assessment of the status of a wildlife species, it must provide the Minister and the Canadian Endangered Species Conservation Council with a copy of the assessment and the reasons for it. A copy of the assessment and the reasons must also be included in the public registry.

COSEWIC list

(2) COSEWIC must annually prepare a complete list of every wildlife species it has assessed since the coming into force of this

section and a copy of that list must be included in the public registry.

Report on response

(3) On receiving a copy of an assessment of the status of a wildlife species from COSEWIC under subsection (1), the Minister must, within 90 days, include in the public registry a report on how the Minister intends to respond to the assessment and, to the extent possible, provide time lines for action.

Annual reports

COSEWIC must annually provide a report on its activities to the Canadian Endangered Species Conservation Council and a copy of that report must be included in the public registry.

List of Wildlife Species at Risk

Power to amend List

(1) The Governor in Council may, on the recommendation of the Minister, by order amend the List in accordance with subsections (1.1) and (1.2) by adding a wildlife species, by reclassifying a listed wildlife species or by removing a listed wildlife species, and the Minister may, by order, amend the List in a similar fashion in accordance with subsection (3).

Decision in respect of assessment

(1.1) Subject to subsection (3), the Governor in Council, within nine months after receiving an assessment of the status of a species by COSEWIC, may review that assessment and may, on the recommendation of the Minister,

(

a) accept the assessment and add the species to the List;

(

b) decide not to add the species to the List; or

(

c) refer the matter back to COSEWIC for further information or consideration.

Statement of reasons

(1.2) Where the Governor in Council takes a course of action under paragraph (1.1)(

b) or ( c ), the Minister shall, after the approval of the Governor in Council, include a statement in the public registry setting out the reasons.

Pre-conditions for recommendation

(2) Before making a recommendation in respect of a wildlife species or a species at risk, the Minister must

(

a) take into account the assessment of COSEWIC in respect of the species;

(

b) consult the competent minister or ministers; and

(

c) if the species is found in an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of a wildlife species, consult the wildlife management board.

Amendment of List by Minister

(3) Where the Governor in Council has not taken a course of action under subsection (1.1) within nine months after receiving an assessment of the status of a species by COSEWIC, the Minister shall, by order, amend the List in accordance with COSEWIC’s assessment.

Applications for assessment of imminent threat

(1) Any person who considers that there is an imminent threat to the survival of a wildlife species may apply to COSEWIC for an assessment of the threat for the purpose of having the species listed on an emergency basis under subsection 29(1) as an endangered species.

Information to be included in application

(2) The application must include relevant information indicating that there is an imminent threat to the survival of the species.

Regulations

(3) The Minister may, after consultation with the Minister of Canadian Heritage, the Minister of Fisheries and Oceans and the Canadian Endangered Species Conservation Council, make regulations respecting the making of applications to COSEWIC under subsection (1) and the dealing with of those applications by COSEWIC.

Notice

(4) COSEWIC must provide the applicant, the Minister and the Canadian Endangered Species Conservation Council with a copy of its assessment. A copy of the assessment must be included in the public registry.

Emergency listing

(1) If the Minister is of the opinion that there is an imminent threat to the survival of a wildlife species, the Minister must, on an emergency basis, after consultation with every other competent minister, make a recommendation to the Governor in Council that the List be amended to list the species as an endangered species.

Formation of opinion

(2) The Minister may arrive at that opinion on the basis of his or her own information or on the basis of COSEWIC’s assessment.

Exemption

(3) If a recommendation is made under subsection (1), subsection 27(2) does not apply to any order that is made under subsection 27(1) on the basis of that recommendation, and the order is exempt from the application of

section 3 of the Statutory Instruments Act .

Review

(1) As soon as possible after an order is made on the basis of a recommendation referred to in subsection 29(1), COSEWIC must have a status report on the wildlife species prepared and, within one year after the making of the order, COSEWIC must, in a report in writing to the Minister,

(

a) confirm the classification of the species;

(

b) recommend to the Minister that the species be reclassified; or

(

c) recommend to the Minister that the species be removed from the List.

Copy of report

(2) Within 30 days after the report is received by the Minister, a copy of the report must be included in the public registry.

Recommendation to amend List

If COSEWIC makes a recommendation under paragraph 30(1)(

b) or ( c ), the Minister may make a recommendation to the Governor in Council with respect to amending the List.

MEASURES TO PROTECT LISTED WILDLIFE SPECIES

General Prohibitions

Killing, harming, etc., listed wildlife species

(1) No person shall kill, harm, harass, capture or take an individual of a wildlife species that is listed as an extirpated species, an endangered species or a threatened species.

Possession, collection, etc.

(2) No person shall possess, collect, buy, sell or trade an individual of a wildlife species that is listed as an extirpated species, an endangered species or a threatened species, or any part or derivative of such an individual.

Deeming

(3) For the purposes of subsection (2), any animal, plant or thing that is represented to be an individual, or a part or derivative of an individual, of a wildlife species that is listed as an extirpated species, an endangered species or a threatened species is deemed, in the absence of evidence to the contrary, to be such an individual or a part or derivative of such an individual.

Damage or destruction of residence

No person shall damage or destroy the residence of one or more individuals of a wildlife species that is listed as an endangered species or a threatened species, or that is listed as an extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada.

Application — certain species in provinces

(1) With respect to individuals of a listed wildlife species that is not an aquatic species or a species of birds that are migratory birds protected by the Migratory Birds Convention Act, 1994 , sections 32 and 33 do not apply in lands in a province that are not federal lands unless an order is made under subsection (2) to provide that they apply.

Order

(2) The Governor in Council may, on the recommendation of the Minister, by order, provide that sections 32 and 33, or either of them, apply in lands in a province that are not federal lands with respect to individuals of a listed wildlife species that is not an aquatic species or a species of birds that are migratory birds protected by the Migratory Birds Convention Act, 1994 .

Obligation to make recommendation

(3) The Minister must recommend that the order be made if the Minister is of the opinion that the laws of the province do not effectively protect the species or the residences of its individuals.

Consultation

(4) Before recommending that the Governor in Council make an order under subsection (2), the Minister must consult

(

a) the appropriate provincial minister; and

(

b) if the species is found in an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species, the wildlife management board.

Application — certain species in territories

(1) Sections 32 and 33 apply in each of the territories in respect of a listed wildlife species only to the extent that the Governor in Council, on the recommendation of the Minister, makes an order providing that they, or any of them, apply.

Exception

(2) Subsection (1) does not apply

(

a) in respect of individuals of aquatic species and their habitat or species of birds that are migratory birds protected by the Migratory Birds Convention Act, 1994 ; or

(

b) on land under the authority of the Minister or the Parks Canada Agency.

Obligation to make recommendation

(3) The Minister must recommend that the order be made if the Minister is of the opinion that the laws of the territory do not effectively protect the species or the residences of its individuals.

Pre-conditions for recommendation

(4) Before recommending that an order be made under subsection (1), the Minister must

(

a) consult the appropriate territorial minister; and

(

b) if the species is found in an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species, consult the wildlife management board.

Prohibitions re provincial and territorial classifications

(1) If a wildlife species that is not listed has been classified as an endangered species or a threatened species by a provincial or territorial minister, no person shall

(

a) kill, harm, harass, capture or take an individual of that species that is on federal lands in the province or territory;

(

b) possess, collect, buy, sell or trade an individual of that species that is on federal lands in the province or territory, or any part or derivative of such an individual; or

(

c) damage or destroy the residence of one or more individuals of that species that is on federal lands in the province or territory.

Application

(2) Subsection (1) applies only in respect of the portions of the federal lands that the Governor in Council may, on the recommendation of the competent minister, by order, specify.

Recovery of Endangered, Threatened and Extirpated Species

Recovery Strategy

Preparation — endangered or threatened species

(1) If a wildlife species is listed as an extirpated species, an endangered species or a threatened species, the competent minister must prepare a strategy for its recovery.

More than one competent minister

(2) If there is more than one competent minister with respect to the wildlife species, they must prepare the strategy together and every reference to competent minister in sections 38 to 46 is to be read as a reference to the competent ministers.

Commitments to be considered

In preparing a recovery strategy, action plan or management plan, the competent minister must consider the commitment of the Government of Canada to conserving biological diversity and to the principle that, if there are threats of serious or irreversible damage to the listed wildlife species, cost-effective measures to prevent the reduction or loss of the species should not be postponed for a lack of full scientific certainty.

Cooperation with others

(1) To the extent possible, the recovery strategy must be prepared in cooperation with

(

a) the appropriate provincial and territorial minister for each province and territory in which the listed wildlife species is found;

(

b) every minister of the Government of Canada who has authority over federal land or other areas on which the species is found;

(

c) if the species is found in an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species, the wildlife management board;

(

d) every aboriginal organization that the competent minister considers will be directly affected by the recovery strategy; and

(

e) any other person or organization that the competent minister considers appropriate.

Land claims agreement

(2) If the listed wildlife species is found in an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species, the recovery strategy must be prepared, to the extent that it will apply to that area, in accordance with the provisions of the agreement.

Consultation

(3) To the extent possible, the recovery strategy must be prepared in consultation with any landowners and other persons whom the competent minister considers to be directly affected by the strategy, including the government of any other country in which the species is found.

Determination of feasibility

In preparing the recovery strategy, the competent minister must determine whether the recovery of the listed wildlife species is technically and biologically feasible. The determination must be based on the best available information, including information provided by COSEWIC.

Contents if recovery feasible

(1) If the competent minister determines that the recovery of the listed wildlife species is feasible, the recovery strategy must address the threats to the survival of the species identified by COSEWIC, including any loss of habitat, and must include

(

a) a description of the species and its needs that is consistent with information provided by COSEWIC;

(

b) an identification of the threats to the survival of the species and threats to its habitat that is consistent with information provided by COSEWIC and a description of the broad strategy to be taken to address those threats;

(

c) an identification of the species’ critical habitat, to the extent possible, based on the best available information, including the information provided by COSEWIC, and examples of activities that are likely to result in its destruction;

( c.1 )

a

schedule of studies to identify critical habitat, where available information is inadequate;

(

d) a statement of the population and distribution objectives that will assist the recovery and survival of the species, and a general description of the research and management activities needed to meet those objectives;

(

e) any other matters that are prescribed by the regulations;

(

f) a statement about whether additional information is required about the species; and

(

g) a statement of when one or more action plans in relation to the recovery strategy will be completed.

Contents if recovery not feasible

(2) If the competent minister determines that the recovery of the listed wildlife species is not feasible, the recovery strategy must include a description of the species and its needs, an identification of the species’ critical habitat to the extent possible, and the reasons why its recovery is not feasible.

Multi-species or ecosystem approach permissible

(3) The competent minister may adopt a multi-species or an ecosystem approach when preparing the recovery strategy if he or she considers it appropriate to do so.

Regulations

(4) The Governor in Council may, on the recommendation of the Minister after consultation with the Minister of Canadian Heritage and the Minister of Fisheries and Oceans, make regulations for the purpose of paragraph (1)(

e) prescribing matters to be included in a recovery strategy.

Proposed recovery strategy

(1) Subject to subsection (2), the competent minister must include a proposed recovery strategy in the public registry within one year after the wildlife species is listed, in the case of a wildlife species listed as an endangered species, and within two years after the species is listed, in the case of a wildlife species listed as a threatened species or an extirpated species.

First listed wildlife species

(2) With respect to wildlife species that are set out in

Schedule 1 on the day

section 27 comes into force, the competent minister must include a proposed recovery strategy in the public registry within three years after that day, in the case of a wildlife species listed as an endangered species, and within four years after that day, in the case of a wildlife species listed as a threatened species or an extirpated species.

Comments

(1) Within 60 days after the proposed recovery strategy is included in the public registry, any person may file written comments with the competent minister.

Finalization of recovery strategy

(2) Within 30 days after the expiry of the period referred to in subsection (1), the competent minister must consider any comments received, make any changes to the proposed recovery strategy that he or she considers appropriate and finalize the recovery strategy by including a copy of it in the public registry.

Existing plans

(1) If the competent minister is of the opinion that an existing plan relating to a wildlife species meets the requirements of subsection 41(1) or (2), and the plan is adopted by the competent minister as the proposed recovery strategy, he or she must include it in the public registry as the proposed recovery strategy in relation to the species.

Incorporation of existing plans

(2) The competent minister may incorporate any part of an existing plan relating to a wildlife species into a proposed recovery strategy for the species.

Amendments

(1) The competent minister may at any time amend the recovery strategy. A copy of the amendment must be included in the public registry.

Amendments relating to time for completing action plan

(2) If the amendment relates to the time for completing an action plan, the competent minister must provide reasons for the amendment and include a copy of the reasons in the public registry.

Amendment procedure

(3) Sections 39 and 43 apply to amendments to a recovery strategy, with any modifications that the circumstances require.

Exception

(4) Subsection (3) does not apply if the competent minister considers the amendment to be minor.

Reporting

The competent minister must report on the implementation of the recovery strategy, and the progress towards meeting its objectives, within five years after it is included in the public registry and in every subsequent five-year period, until its objectives have been achieved or the species’ recovery is no longer feasible. The report must be included in the public registry.

Action Plan

Preparation

The competent minister in respect of a recovery strategy must prepare one or more action plans based on the recovery strategy. If there is more than one competent minister with respect to the recovery strategy, they may prepare the action plan or plans together.

Cooperation with other ministers and governments

(1) To the extent possible, an action plan must be prepared in cooperation with

(

a) the appropriate provincial and territorial minister of each province and territory in which the listed wildlife species is found;

(

b) every minister of the Government of Canada who has authority over federal land or other areas on which the species is found;

(

c) if the species is found in an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species, the wildlife management board;

(

d) every aboriginal organization that the competent minister considers will be directly affected by the action plan; and

(

e) any other person or organization that the competent minister considers appropriate.

Land claims agreement

(2) If the listed wildlife species is found in an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species, an action plan must be prepared, to the extent that it will apply to that area, in accordance with the provisions of the agreement.

Consultation

(3) To the extent possible, an action plan must be prepared in consultation with any landowners, lessees and other persons whom the competent minister considers to be directly affected by, or interested in, the action plan, including the government of any other country in which the species is found.

Contents

(1) An action plan must include, with respect to the area to which the action plan relates,

(

a) an identification of the species’ critical habitat, to the extent possible, based on the best available information and consistent with the recovery strategy, and examples of activities that are likely to result in its destruction;

(

b) a statement of the measures that are proposed to be taken to protect the species’ critical habitat, including the entering into of agreements under

section 11;

(

c) an identification of any portions of the species’ critical habitat that have not been protected;

(

d) a statement of the measures that are to be taken to implement the recovery strategy, including those that address the threats to the species and those that help to achieve the population and distribution objectives, as well as an indication as to when these measures are to take place;

( d.1 )

the methods to be used to monitor the recovery of the species and its long-term viability;

(

e) an evaluation of the socio-economic costs of the action plan and the benefits to be derived from its implementation; and

(

f) any other matters that are prescribed by the regulations.

Regulations

(2) The Governor in Council may, on the recommendation of the Minister after consultation with the Minister of Canadian Heritage and the Minister of Fisheries and Oceans, make regulations for the purpose of paragraph (1)(

f) prescribing matters to be included in an action plan.

Proposed action plan

(1) The competent minister must include a proposed action plan in the public registry.

Comments

(2) Within 60 days after the proposed action plan is included in the public registry, any person may file written comments with the competent minister.

Finalization of action plan

(3) Within 30 days after the expiry of the period referred to in subsection (2), the competent minister must consider any comments received, make any changes to the proposed action plan that he or she considers appropriate and finalize the action plan by including a copy of it in the public registry.

SUMMARY if action plan not completed in time

(4) If an action plan is not finalized in the time set out in the recovery strategy, the competent minister must include in the public registry a

summary of what has been prepared with respect to the plan.

Existing plans

(1) If the competent minister is of the opinion that an existing plan relating to a wildlife species meets the requirements of

section 49, and the plan is adopted by the competent minister as a proposed action plan, he or she must include it in the public registry as a proposed action plan in relation to the species.

Incorporation of existing plans

(2) The competent minister may incorporate any part of an existing plan relating to a wildlife species into a proposed action plan for the species.

Amendments

(1) The competent minister may at any time amend an action plan. A copy of the amendment must be included in the public registry.

Amendment procedure

(2) Section 48 applies to amendments to an action plan, with any modifications that the circumstances require.

Exception

(3) Subsection (2) does not apply if the competent minister considers the amendment to be minor.

Regulations

(1) The competent minister must, with respect to aquatic species, species of birds that are migratory birds protected by the Migratory Birds Convention Act, 1994 , regardless of where they are located, or with respect to any other wildlife species on federal lands, make any regulations that are necessary in the opinion of the competent minister for the purpose of implementing the measures included in an action plan, but, if the measures relate to the protection of critical habitat on federal lands, the regulations must be made under

section 59.

Consultation

(2) If the competent minister is of the opinion that a regulation would affect a reserve or any other lands that are set apart for the use and benefit of a band under the Indian Act , he or she must consult the Minister of Indian Affairs and Northern Development and the band before making the regulation.

Consultation

(3) If the competent minister is of the opinion that a regulation would affect an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species, he or she must consult the wildlife management board before making the regulation.

Incorporation by reference

(4) The regulations may incorporate by reference any legislation of a province or territory, as amended from time to time, insofar as the regulations apply in that province or territory.

Consultation

(5) If the competent minister is of the opinion that a regulation would affect land in a territory, he or she must consult the territorial minister before making the regulation.

Exception

(6) Subsection (5) does not apply

(

a) in respect of individuals of aquatic species and their habitat or species of birds that are migratory birds protected by the Migratory Birds Convention Act, 1994 and their habitat; or

(

b) in respect of land under the authority of the Minister or the Parks Canada Agency.

Use of powers under other Acts

For the purpose of implementing the measures included in an action plan, the competent minister may use any powers that he or she has under any other Act of Parliament.

Monitoring and reporting

The competent minister must monitor the implementation of an action plan and the progress towards meeting its objectives and assess and report on its implementation and its ecological and socio-economic impacts five years after the plan comes into effect. A copy of the report must be included in the public registry.

Protection of Critical Habitat

Codes of practice, national standards or guidelines

The competent minister may, after consultation with the Canadian Endangered Species Conservation Council and any person whom he or she considers appropriate, establish codes of practice, national standards or guidelines with respect to the protection of critical habitat.

Purpose

The purpose of

section 58 is to ensure that, within 180 days after the recovery strategy or action plan that identified the critical habitat referred to in subsection 58(1) is included in the public registry, all of the critical habitat is protected by

(

a) provisions in, or measures under, this or any other Act of Parliament, including agreements under

section 11; or

(

b) the application of subsection 58(1).

Destruction of critical habitat

(1) Subject to this section, no person shall destroy any part of the critical habitat of any listed endangered species or of any listed threatened species — or of any listed extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada — if

(

a) the critical habitat is on federal land, in the exclusive economic zone of Canada or on the continental shelf of Canada;

(

b) the listed species is an aquatic species; or

(

c) the listed species is a species of migratory birds protected by the Migratory Birds Convention Act, 1994 .

Protected areas

(2) If the critical habitat or a portion of the critical habitat is in a national park of Canada named and described in

Schedule 1 to the Canada National Parks Act , a marine protected area under the Oceans Act , a migratory bird sanctuary under the Migratory Birds Convention Act, 1994 or a national wildlife area under the Canada Wildlife Act , the competent Minister must, within 90 days after the recovery strategy or action plan that identified the critical habitat is included in the public registry, publish in the Canada Gazette a description of the critical habitat or portion that is in that park, area or sanctuary.

Application

(3) If subsection (2) applies, subsection (1) applies to the critical habitat or the portion of the critical habitat described in the Canada Gazette under subsection (2) 90 days after the description is published in the Canada Gazette .

Application

(4) If all of the critical habitat or any portion of the critical habitat is not in a place referred to in subsection (2), subsection (1) applies in respect of the critical habitat or portion of the critical habitat, as the case may be, specified in an order made by the competent minister.

Obligation to make order or statement

(5) Within 180 days after the recovery strategy or action plan that identified the critical habitat is included in the public registry, the competent minister must, after consultation with every other competent minister, with respect to all of the critical habitat or any portion of the critical habitat that is not in a place referred to in subsection (2),

(

a) make the order referred to in subsection (4) if the critical habitat or any portion of the critical habitat is not legally protected by provisions in, or measures under, this or any other Act of Parliament, including agreements under

section 11; or

(

b) if the competent minister does not make the order, he or she must include in the public registry a statement setting out how the critical habitat or portions of it, as the case may be, are legally protected.

Habitat of migratory birds

(5.1) Despite subsection (4), with respect to the critical habitat of a species of bird that is a migratory bird protected by the Migratory Birds Convention Act, 1994 that is not on federal land, in the exclusive economic zone of Canada, on the continental shelf of Canada or in a migratory bird sanctuary referred to in subsection (2), subsection (1) applies only to those portions of the critical habitat that are habitat to which that Act applies and that the Governor in Council may, by order, specify on the recommendation of the competent minister.

Obligation to make recommendation

(5.2) The competent minister must, within 180 days after the recovery strategy or action plan that identified the critical habitat that includes habitat to which the Migratory Birds Convention Act, 1994 applies is included in the public registry, and after consultation with every other competent minister,

(

a) make the recommendation if he or she is of the opinion there are no provisions in, or other measures under, this or any other Act of Parliament, including agreements under

section 11, that legally protect any portion or portions of the habitat to which that Act applies; or

(

b) if the competent minister does not make the recommendation, he or she must include in the public registry a statement setting out how the critical habitat that is habitat to which that Act applies, or portions of it, as the case may be, are legally protected.

Consultation

(6) If the competent minister is of the opinion that an order under subsection (4) or (5.1) would affect land in a territory that is not under the authority of the Minister or the Parks Canada Agency, he or she must consult the territorial minister before making the order under subsection (4) or the recommendation under subsection (5.2).

Consultation

(7) If the competent minister is of the opinion that an order under subsection (4) or (5.1) would affect a reserve or any other lands that are set apart for the use and benefit of a band under the Indian Act , he or she must consult the Minister of Indian Affairs and Northern Development and the band before making the order under subsection (4) or the recommendation under subsection (5.2).

Consultation

(8) If the competent minister is of the opinion that an order under subsection (4) or (5.1) would affect an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species, he or she must consult the wildlife management board before making the order under subsection (4) or the recommendation under subsection (5.2).

Consultation

(9) If the competent minister is of the opinion that an order under subsection (4) or (5.1) would affect land that is under the authority of another federal minister, other than a competent minister, he or she must consult the other federal minister before making the order under subsection (4) or the recommendation under subsection (5.2).

Regulations re federal lands

(1) The Governor in Council may, on the recommendation of the competent minister after consultation with every other competent minister, make regulations to protect critical habitat on federal lands.

Obligation to make recommendation

(2) The competent minister must make the recommendation if the recovery strategy or an action plan identifies a portion of the critical habitat as being unprotected and the competent minister is of the opinion that the portion requires protection.

Contents

(3) The regulations may include provisions requiring the doing of things that protect the critical habitat and provisions prohibiting activities that may adversely affect the critical habitat.

Consultation

(4) If the competent minister is of the opinion that a regulation would affect land in a territory that is not under the authority of the Minister or the Parks Canada Agency, he or she must consult the territorial minister before recommending the making of the regulation.

Consultation

(5) If the competent minister is of the opinion that a regulation would affect a reserve or any other lands that are set apart for the use and benefit of a band under the Indian Act , he or she must consult the Minister of Indian Affairs and Northern Development and the band before recommending the making of the regulation.

Consultation

(6) If the competent minister is of the opinion that a regulation would affect an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species, he or she must consult the wildlife management board before recommending the making of the regulation.

Provincial and territorial classifications

(1) If a wildlife species has been classified as an endangered species or a threatened species by a provincial or territorial minister, no person shall destroy any part of the habitat of that species that the provincial or territorial minister has identified as essential to the survival or recovery of the species and that is on federal lands in the province or territory.

Application

(2) Subsection (1) applies only to the portions of the habitat that the Governor in Council may, on the recommendation of the competent minister, by order, specify.

Destruction of critical habitat

(1) No person shall destroy any part of the critical habitat of a listed endangered species or a listed threatened species that is in a province or territory and that is not part of federal lands.

Exception

(1.1) Subsection (1) does not apply in respect of

(

a) an aquatic species; or

(

b) the critical habitat of a species of bird that is a migratory bird protected by the Migratory Birds Convention Act, 1994 that is habitat referred to in subsection 58(5.1).

Application

(2) Subsection (1) applies only to the portions of the critical habitat that the Governor in Council may, on the recommendation of the Minister, by order, specify.

Power to make recommendation

(3) The Minister may make a recommendation if

(

a) a provincial minister or territorial minister has requested that the recommendation be made; or

(

b) the Canadian Endangered Species Conservation Council has recommended that the recommendation be made.

Obligation to make recommendation

(4) The Minister must make a recommendation if he or she is of the opinion, after consultation with the appropriate provincial or territorial minister, that

(

a) there are no provisions in, or other measures under, this or any other Act of Parliament that protect the particular portion of the critical habitat, including agreements under

section 11; and

(

b) the laws of the province or territory do not effectively protect the critical habitat.

Expiry and renewal of order

(5) An order made under subsection (2) expires five years after the day on which it is made or renewed, unless the Governor in Council, by order, renews it.

Recommendation to repeal order

(6) If the Minister is of the opinion that an order made under subsection (2) is no longer necessary to protect the portion of the critical habitat to which the order relates or that the province or territory has brought into force laws that protect the portion, the Minister must recommend that the order be repealed.

Acquisition of lands

A competent minister may enter into an agreement with any government in Canada, organization or person to acquire any lands or interests in land for the purpose of protecting the critical habitat of any species at risk.

Progress reports on unprotected portions of critical habitat

If in the opinion of the Minister any portion of the critical habitat of a listed wildlife species remains unprotected 180 days after the recovery strategy or action plan that identified the critical habitat was included in the public registry, the Minister must include in that registry a report on the steps taken to protect the critical habitat. The Minister must continue to report with respect to every subsequent period of 180 days until the portion is protected or is no longer identified as critical habitat.

Compensation

(1) The Minister may, in accordance with the regulations, provide fair and reasonable compensation to any person for losses suffered as a result of any extraordinary impact of the application of

(

a) section 58, 60 or 61; or

(

b) an emergency order in respect of habitat identified in the emergency order that is necessary for the survival or recovery of a wildlife species.

Regulations

(2) The Governor in Council shall make regulations that the Governor in Council considers necessary for carrying out the purposes and provisions of subsection (1), including regulations prescribing

(

a) the procedures to be followed in claiming compensation;

(

b) the methods to be used in determining the eligibility of a person for compensation, the amount of loss suffered by a person and the amount of compensation in respect of any loss; and

(

c) the terms and conditions for the provision of compensation.

Management of Species of Special Concern

Preparation of management plan

If a wildlife species is listed as a species of special concern, the competent minister must prepare a management plan for the species and its habitat. The plan must include measures for the conservation of the species that the competent minister considers appropriate and it may apply with respect to more than one wildlife species.

Cooperation with other ministers and governments

(1) To the extent possible, the management plan must be prepared in cooperation with

(

a) the appropriate provincial and territorial minister of each province and territory in which the listed wildlife species is found;

(

b) every minister of the Government of Canada who has authority over federal land or other areas on which the species is found;

(

c) if the species is found in an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species, the wildlife management board;

(

d) every aboriginal organization that the competent minister considers will be directly affected by the management plan; and

(

e) any other person or organization that the competent minister considers appropriate.

Land claims agreement

(2) If the listed wildlife species is found in an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species, the management plan must be prepared, to the extent that it will apply to that area, in accordance with the provisions of the agreement.

Consultation

(3) To the extent possible, the management plan must be prepared in consultation with any landowners, lessees and other persons whom the competent minister considers to be directly affected by, or interested in, the management plan, including the government of any other country in which the species is found.

Multi-species or ecosystem approach permissible

The competent minister may adopt a multi-species or an ecosystem approach when preparing the management plan if he or she considers it appropriate to do so.

Proposed management plan

(1) Subject to subsection (2), the competent minister must include a proposed management plan in the public registry within three years after the wildlife species is listed as a species of special concern.

First listed species

(2) With respect to a wildlife species that is set out in

Schedule 1 as a species of special concern on the day

section 27 comes into force, the competent minister must include a proposed management plan in the public registry within five years after that day.

Comments

(3) Within 60 days after the proposed management plan is included in the public registry, any person may file written comments with the competent minister.

Finalization of management plan

(4) Within 30 days after the expiry of the period referred to in subsection (3), the competent minister must consider any comments received, make any changes to the proposed management plan that he or she considers appropriate and finalize the management plan by including a copy of it in the public registry.

Existing plans

(1) If the competent minister is of the opinion that an existing plan relating to a wildlife species includes adequate measures for the conservation of the species and the competent minister adopts the existing plan as the proposed management plan, he or she must include a copy of it in the public registry as the proposed management plan in relation to the species.

Incorporation of existing plans

(2) The competent minister may incorporate any part of an existing plan relating to a wildlife species into a proposed management plan for the species.

Amendments

(1) The competent minister may at any time amend a management plan. A copy of the amendment must be included in the public registry.

Amendment procedure

(2) Section 66 applies to amendments to the management plan, with any modifications that the circumstances require.

Exception

(3) Subsection (2) does not apply if the competent minister considers the amendment to be minor.

Regulations

(1) The Governor in Council may, on the recommendation of the competent minister, make any regulations with respect to aquatic species or species of birds that are migratory birds protected by the Migratory Birds Convention Act, 1994 , regardless of where they are located, or with respect to any other wildlife species on federal lands, that the Governor in Council considers appropriate for the purpose of implementing the measures included in the management plan.

Consultation

(2) If the competent minister is of the opinion that a regulation would affect a reserve or any other lands that are set apart for the use and benefit of a band under the Indian Act , he or she must consult the Minister of Indian Affairs and Northern Development and the band before recommending the making of the regulation.

Consultation

(3) If the competent minister is of the opinion that a regulation would affect an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species, he or she must consult the wildlife management board before recommending the making of the regulation.

Incorporation by reference

(4) The regulations may incorporate by reference any legislation of a province or territory, as amended from time to time, insofar as the regulations apply in that province or territory.

Consultation

(5) If the competent minister is of the opinion that a regulation would affect land in a territory, he or she must consult the territorial minister before recommending the making of the regulation.

Exception

(6) Subsection (5) does not apply

(

a) in respect of individuals of aquatic species and their habitat or species of birds that are migratory birds protected by the Migratory Birds Convention Act, 1994 and their habitat; or

(

b) in respect of land under the authority of the Minister or the Parks Canada Agency.

Monitoring

The competent minister must monitor the implementation of the management plan and must assess its implementation five years after the plan is included in the public registry, and in every subsequent five-year period, until its objectives have been achieved. The report must be included in the public registry.

Agreements and Permits

Powers of competent minister

(1) The competent minister may enter into an agreement with a person, or issue a permit to a person, authorizing the person to engage in an activity affecting a listed wildlife species, any part of its critical habitat or the residences of its individuals.

Purpose

(2) The agreement may be entered into, or the permit issued, only if the competent minister is of the opinion that

(

a) the activity is scientific research relating to the conservation of the species and conducted by qualified persons;

(

b) the activity benefits the species or is required to enhance its chance of survival in the wild; or

(

c) affecting the species is incidental to the carrying out of the activity.

Pre-conditions

(3) The agreement may be entered into, or the permit issued, only if the competent minister is of the opinion that

(

a) all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted;

(

b) all feasible measures will be taken to minimize the impact of the activity on the species or its critical habitat or the residences of its individuals; and

(

c) the activity will not jeopardize the survival or recovery of the species.

Explanation in public registry

(3.1) If an agreement is entered into or a permit is issued, the competent minister must include in the public registry an explanation of why it was entered into or issued, taking into account the matters referred to in paragraphs (3)( a ), (

b) and ( c ).

Consultation

(4) If the species is found in an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species, the competent minister must consult the wildlife management board before entering into an agreement or issuing a permit concerning that species in that area.

Consultation

(5) If the species is found in a reserve or any other lands that are set apart for the use and benefit of a band under the Indian Act , the competent minister must consult the band before entering into an agreement or issuing a permit concerning that species in that reserve or those other lands.

Terms and conditions

(6) The agreement or permit must contain any terms and conditions governing the activity that the competent minister considers necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.

Review of agreements and permits

(7) The competent minister must review the agreement or permit if an emergency order is made with respect to the species.

Amendment of agreements and permits

(8) The competent minister may revoke or amend an agreement or a permit to ensure the survival or recovery of a species.

Maximum term

(9) No agreement may be entered into for a term longer than five years and no permit may be issued for a term longer than three years.

Regulations

(10) The Minister may, after consultation with the Minister of Canadian Heritage and the Minister of Fisheries and Oceans, make regulations respecting the entering into of agreements, the issuance of permits and the renewal, revocation, amendment and suspension of agreements and permits.

Competent minister acting under other Acts

An agreement, permit, licence, order or other similar document authorizing a person or organization to engage in an activity affecting a listed wildlife species, any part of its critical habitat or the residences of its individuals that is entered into, issued or made by the competent minister under another Act of Parliament has the same effect as an agreement or permit under subsection 73(1) if

(

a) before it is entered into, issued or made, the competent minister is of the opinion that the requirements of subsections 73(2) to (6) and (9) are met; and

(

b) after it is entered into, issued or made, the competent minister complies with the requirements of subsection 73(7).

Adding terms and conditions

(1) A competent minister may add terms and conditions to protect a listed wildlife species, any part of its critical habitat or the residences of its individuals to any agreement, permit, licence, order or other similar document authorizing a person to engage in an activity affecting the species, any part of its critical habitat or the residences of its individuals that is entered into, issued or made by the competent minister under another Act of Parliament.

Amending terms and conditions

(2) A competent minister may also revoke or amend any term or condition in any of those documents to protect a listed wildlife species, any part of its critical habitat or the residences of its individuals.

Treaties and land claims agreements

(3) The competent minister must take into account any applicable provisions of treaty and land claims agreements when carrying out his or her powers under this section.

Exemption for existing agreements, permits, etc.

The Governor in Council may, on the recommendation of a competent minister, by order, provide that

section 32, 33, 36, 58, 60 or 61, or any regulation made under

section 53, 59 or 71, does not apply, for a period of up to one year from the date of listing of a wildlife species, to agreements, permits, licences, orders or other similar documents authorizing persons to engage in an activity affecting the listed wildlife species, any part of its critical habitat or the residences of its individuals that were entered into, issued or made under another Act of Parliament before the species was listed.

Licences, permits, etc., under other Acts of Parliament

(1) Despite any other Act of Parliament, any person or body, other than a competent minister, authorized under any Act of Parliament, other than this Act, to issue or approve a licence, a permit or any other authorization that authorizes an activity that may result in the destruction of any part of the critical habitat of a listed wildlife species may enter into, issue, approve or make the authorization only if the person or body has consulted with the competent minister, has considered the impact on the species’ critical habitat and is of the opinion that

(

a) all reasonable alternatives to the activity that would reduce the impact on the species’ critical habitat have been considered and the best solution has been adopted; and

(

b) all feasible measures will be taken to minimize the impact of the activity on the species’ critical habitat.

Application of

section 58

(2) For greater certainty,

section 58 applies even though a licence, a permit or any other authorization has been issued in accordance with subsection (1).

Agreements and permits under other provincial and territorial Acts

(1) An agreement, permit, licence, order or other similar document authorizing a person to engage in an activity affecting a listed wildlife species, any part of its critical habitat or the residences of its individuals that is entered into, issued or made under

an Act of the legislature of a province or a territory by a provincial or territorial minister with whom a competent minister has entered into an agreement under

section 10 has the same effect as an agreement or permit under subsection 73(1) if

(

a) before it is entered into, issued or made, the provincial or territorial minister determines that the requirements of subsections 73(2), (3), (6) and (9) are met; and

(

b) after it is entered into, issued or made, the provincial or territorial minister complies with the requirements of subsection 73(7).

Interpretation

(2) For the purpose of subsection (1), the references to “competent minister” in subsections 73(2), (3), (6) and (7) are to be read as references to “provincial minister” or “territorial minister”, as the case may be.

Project Review

Notification of Minister

(1) Every person who is required by or under

an Act of Parliament to ensure that an assessment of the environmental effects of a project is conducted must, without delay, notify the competent minister or ministers in writing of the project if it is likely to affect a listed wildlife species or its critical habitat.

Required action

(2) The person must identify the adverse effects of the project on the listed wildlife species and its critical habitat and, if the project is carried out, must ensure that measures are taken to avoid or lessen those effects and to monitor them. The measures must be taken in a way that is consistent with any applicable recovery strategy and action plans.

Definitions

(3) The

definitions in this subsection apply in this section.

person

personne

person includes an association or organization, and a responsible authority as defined in subsection 2(1) of the Canadian Environmental Assessment Act .

project

projet

project means a project as defined in subsection 2(1) of the Canadian Environmental Assessment Act .

Emergency Orders

Emergency order

(1) The Governor in Council may, on the recommendation of the competent minister, make an emergency order to provide for the protection of a listed wildlife species.

Obligation to make recommendation

(2) The competent minister must make the recommendation if he or she is of the opinion that the species faces imminent threats to its survival or recovery.

Consultation

(3) Before making a recommendation, the competent minister must consult every other competent minister.

Contents

(4) The emergency order may

(

a) in the case of an aquatic species,

(

i) identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates, and

(ii)

include provisions requiring the doing of things that protect the species and that habitat and provisions prohibiting activities that may adversely affect the species and that habitat;

(

b) in the case of a species that is a species of migratory birds protected by the Migratory Birds Convention Act, 1994 ,

(

i) on federal land or in the exclusive economic zone of Canada,

(

A) identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates, and

(

B) include provisions requiring the doing of things that protect the species and that habitat and provisions prohibiting activities that may adversely affect the species and that habitat, and

(ii)

on land other than land referred to in subparagraph (i),

(

A) identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates, and

(

B) include provisions requiring the doing of things that protect the species and provisions prohibiting activities that may adversely affect the species and that habitat; and

(

c) with respect to any other species,

(

i) on federal land, in the exclusive economic zone of Canada or on the continental shelf of Canada,

(

A) identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates, and

(

B) include provisions requiring the doing of things that protect the species and that habitat and provisions prohibiting activities that may adversely affect the species and that habitat, and

(ii)

on land other than land referred to in subparagraph (i),

(

A) identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates, and

(

B) include provisions prohibiting activities that may adversely affect the species and that habitat.

Exemption

(5) An emergency order is exempt from the application of

section 3 of the Statutory Instruments Act .

Equivalent measures

Despite subsection 80(2), the competent minister is not required to make a recommendation for an emergency order if he or she is of the opinion that equivalent measures have been taken under another Act of Parliament to protect the wildlife species.

Recommendation to repeal

If the competent minister is of the opinion that the species to which the emergency order relates would no longer face imminent threats to its survival or recovery even if the order were repealed, he or she must make a recommendation to the Governor in Council that the emergency order be repealed.

Exceptions

General exceptions

(1) Subsections 32(1) and (2),

section 33, subsections 36(1), 58(1), 60(1) and 61(1), regulations made under

section 53, 59 or 71 and emergency orders do not apply to a person who is engaging in

(

a) activities related to public safety, health or national security, that are authorized by or under any other Act of Parliament or activities under the Health of Animals Act and the Plant Protection Act for the health of animals and plants; or

(

b) activities authorized under

section 73, 74 or 78 by an agreement, permit, licence, order or similar document.

Authorization of activities under other Acts

(2) A power under

an Act described in paragraph (1)(

a) may be used to authorize an activity prohibited by subsection 32(1) or (2),

section 33, subsection 36(1), 58(1), 60(1) or 61(1), a regulation made under

section 53, 59 or 71 or an emergency order only if the person exercising the power

(

a) determines that the activity is necessary for the protection of public safety, health, including animal and plant health, or national security; and

(

b) respects the purposes of this Act to the greatest extent possible.

Exceptions — land claims agreements

(3) Subsections 32(1) and (2),

section 33, subsections 36(1), 58(1), 60(1) and 61(1) and regulations made under

section 53, 59 or 71 do not apply to a person who is engaging in activities in accordance with conservation measures for wildlife species under a land claims agreement.

Exemptions for permitted activities

(4) Subsections 32(1) and (2),

section 33 and subsections 36(1), 58(1), 60(1) and 61(1) do not apply to a person who is engaging in activities that are permitted by a recovery strategy, an action plan or a management plan and who is also authorized under

an Act of Parliament to engage in that activity, including a regulation made under

section 53, 59 or 71.

Additional possession exceptions

(5) Subsection 32(2) and paragraph 36(1)(

b) do not apply to a person who possesses an individual of a listed extirpated, endangered or threatened species, or any part or derivative of such an individual, if

(

a) it was in the person’s possession when the species was listed;

(

b) it is used by an aboriginal person for ceremonial or medicinal purposes, or it is part of ceremonial dress used for ceremonial or cultural purposes by an aboriginal person;

(

c) the person acquired it legally in another country and imported it legally into Canada;

(

d) the person acquired it by succession from someone who was entitled to possess it under this Act;

(

e) the person acquired it under circumstances that would afford them a defence under

section 100 and the person possesses it only for as long as is necessary to donate it to a museum, a zoo, an educational institution, a scientific society or a government;

(

f) the person is, or is acting on behalf of, a museum, zoo, educational institution, scientific society or government and the person acquired it from someone who was entitled to possess it under this Act; or

(

g) it or the person is otherwise exempt by the regulations.

Regulations

The Governor in Council may, on the recommendation of the Minister after consultation with the Minister of Canadian Heritage and the Minister of Fisheries and Oceans, make regulations for the purpose of paragraph 83(5)( g ).

ENFORCEMENT MEASURES

Enforcement Officers

Enforcement officers

(1) A competent minister may designate any person or person of a class of persons to act as enforcement officers for the purposes of this Act.

Designation of provincial or territorial government employees

(2) The competent minister may not designate any person or person of a class of persons employed by the government of a province or a territory unless that government agrees.

Certificate of designation

(3) An enforcement officer must be provided with a certificate of designation as an enforcement officer in a form approved by the competent minister and, on entering any place under this Act, the officer must, if so requested, show the certificate to the occupant or person in charge of the place.

Powers

(4) For the purposes of this Act, enforcement officers have all the powers of a peace officer, but the competent minister may specify limits on those powers when designating any person or person of a class of persons to act as enforcement officers.

Exemptions for law enforcement activities

(5) For the purpose of investigations and other law enforcement activities under this Act, a competent minister may, on any terms and conditions that he or she considers necessary, exempt from the application of any provision of this Act, the regulations or an emergency order enforcement officers whom the competent minister has designated and who are carrying out duties or functions under this Act and persons acting under the direction and control of such enforcement officers.

Inspections

Inspections

(1) For the purpose of ensuring compliance with any provision of this Act, the regulations or an emergency order, an enforcement officer may, subject to subsection (3), at any reasonable time enter and inspect any place in which the enforcement officer believes, on reasonable grounds, there is any thing to which the provision applies or any document relating to its administration, and the enforcement officer may

(

a) open or cause to be opened any container that the enforcement officer believes, on reasonable grounds, contains that thing or document;

(

b) inspect the thing and take samples free of charge;

(

c) require any person to produce the document for inspection or copying, in whole or in part; and

(

d) seize any thing by means of or in relation to which the enforcement officer believes, on reasonable grounds, the provision has been contravened or that the enforcement officer believes, on reasonable grounds, will provide evidence of a contravention.

Conveyance

(2) For the purposes of carrying out the inspection, the enforcement officer may stop a conveyance or direct that it be moved to a place where the inspection can be carried out.

Dwelling-place

(3) The enforcement officer may not enter a dwelling-place except with the consent of the occupant or person in charge of the dwelling-place or under the authority of a warrant.

Authority to issue warrant for inspection of dwelling-place

(4) On an ex parte application, a justice, as defined in

section 2 of the Criminal Code , may issue a warrant, subject to any conditions specified in it, authorizing an enforcement officer to enter a dwelling-place, if the justice is satisfied by information on oath that

(

a) the conditions for entry described in subsection (1) exist in relation to the dwelling-place;

(

b) entry to the dwelling-place is necessary for the purposes of the administration of this Act, the regulations or an emergency order; and

(

c) entry to the dwelling-place has been refused or there are reasonable grounds for believing that entry will be refused.

Authority to issue warrant for inspection of non-dwellings

(5) On an ex parte application, a justice, as defined in

section 2 of the Criminal Code , may issue a warrant, subject to any conditions specified in it, authorizing an enforcement officer to enter a place other than a dwelling-place, if the justice is satisfied by information on oath that

(

a) the conditions for entry described in subsection (1) exist in relation to that place;

(

b) entry to that place is necessary for the purposes of the administration of this Act, the regulations or an emergency order;

(

c) entry to that place has been refused, the enforcement officer is not able to enter without the use of force or the place was abandoned; and

(

d) subject to subsection (6), all reasonable attempts were made to notify the owner, operator or person in charge of the place.

Waiving notice

(6) The justice may waive the requirement to give notice referred to in subsection (5) if the justice is satisfied that attempts to give the notice would be unsuccessful because the owner, operator or person in charge is absent from the jurisdiction of the justice or that it is not in the public interest to give the notice.

Use of force

(7) In executing a warrant issued under subsection (4) or (5), an enforcement officer may not use force unless the use of force has been specifically authorized in the warrant.

Operation of computer system and copying equipment

(8) In carrying out an inspection of a place under this section, an enforcement officer may

(

a) use or cause to be used any computer system at the place to examine any data contained in or available to the computer system;

(

b) reproduce any record or cause it to be reproduced from the data in the form of a printout or other intelligible output;

(

c) take a printout or other output for examination or copying; and

(

d) use or cause to be used any copying equipment at the place to make copies of the record.

Duty of person in possession or control

(9) Every person who is in possession or control of a place being inspected under this

section must permit the enforcement officer to do anything referred to in subsection (8).

Disposition of Things Seized

Custody of things seized

(1) Subject to subsections (2) to (4), if an enforcement officer seizes a thing under this Act or under a warrant issued under the Criminal Code ,

(

a) sections 489.1 and 490 of the Criminal Code apply; and

(

b) the enforcement officer, or any person that the officer may designate, must retain custody of the thing subject to any order made under

section 490 of the Criminal Code .

Forfeiture if ownership not ascertainable

(2) If the lawful ownership of or entitlement to the seized thing cannot be ascertained within 30 days after its seizure, the thing or any proceeds of its disposition are forfeited to Her Majesty in right of Canada, if the thing was seized by an enforcement officer employed in the public service of Canada or by the government of a territory, or to Her Majesty in right of a province, if the thing was seized by an enforcement officer employed by the government of that province.

Perishable things

(3) If the seized thing is perishable, the enforcement officer may dispose of it or destroy it, and any proceeds of its disposition must be paid to the lawful owner or person lawfully entitled to possession of the thing, unless proceedings under this Act are commenced within 90 days after its seizure, in which case the proceeds must be retained by the enforcement officer pending the outcome of the proceedings.

Release of individual

(4) An enforcement officer who seizes an individual of a species at risk may, at the time of the seizure, return the individual to the wild if the enforcement officer believes the individual to be alive.

Abandonment

(5) The owner of the seized thing may abandon it to Her Majesty in right of Canada or a province.

Disposition by competent minister

Any thing that has been forfeited or abandoned under this Act is to be dealt with and disposed of as the competent minister may direct.

Liability for costs

The lawful owner and any person lawfully entitled to possession of any thing seized, forfeited or abandoned under this Act and who has been convicted of an offence under this Act in relation to that thing, are jointly and severally, or solidarily, liable for all the costs of inspection, seizure, abandonment, forfeiture or disposition incurred by Her Majesty in excess of any proceeds of disposition of the thing that have been forfeited to Her Majesty under this Act.

Assistance to Enforcement Officers

Right of passage

An enforcement officer may, while carrying out powers, duties or functions under this Act, enter on and pass through or over private property without being liable for trespass or without the owner of the property having the right to object to that use of the property.

Assistance

The owner or the person in charge of a place entered by an enforcement officer under

section 86, and every person found in the place, must

(

a) give the enforcement officer all reasonable assistance to enable the enforcement officer to carry out duties and functions under this Act; and

(

b) provide the enforcement officer with any information in relation to the administration of this Act, the regulations or an emergency order that the enforcement officer may reasonably require.

Obstruction

While an enforcement officer is exercising powers or carrying out duties or functions under this Act, no person shall

(

a) knowingly make any false or misleading statement, either orally or in writing, to the enforcement officer; or

(

b) otherwise obstruct or hinder the enforcement officer.

Investigations

Application for investigation

(1) A person who is a resident of Canada and at least 18 years of age may apply to the competent minister for an investigation of whether an alleged offence has been committed or whether anything directed towards its commission has been done.

Statement to accompany application

(2) The application must be in a form approved by the competent minister and must include a solemn affirmation or declaration containing

(

a) the name and address of the applicant;

(

b) a statement that the applicant is at least 18 years old and a resident of Canada;

(

c) a statement of the nature of the alleged offence and the name of each person alleged to be involved;

(

d) a

summary of the evidence supporting the allegations;

(

e) the name and address of each person who might be able to give evidence about the alleged offence, together with a

summary of the evidence that the person might give, to the extent that information is available to the applicant;

(

f) a description of any document or other material that the applicant believes should be considered in the investigation and, if possible, a copy of the document; and

(

g) details of any previous contact between the applicant and the competent minister about the alleged offence.

Investigation

(1) The competent minister must acknowledge receipt of the application within 20 days after receiving it and, subject to subsections (2) and (3), investigate all matters that he or she considers necessary to determine the facts relating to the alleged offence.

Frivolous or vexatious applications

(2) No investigation is required if the competent minister decides that the application is frivolous or vexatious.

Notice of decision

(3) If the competent minister decides not to conduct an investigation, he or she must, within 60 days after the application for investigation is received, give notice of the decision, with reasons, to the applicant.

When notice need not be given

(4) The competent minister need not give the notice if an investigation in relation to the alleged offence is ongoing apart from the application.

Competent minister may send evidence to Attorney General

At any stage of the investigation, the competent minister may send any documents or other evidence to the Attorney General for a consideration of whether an offence has been or is about to be committed, and for any action that the Attorney General may wish to take.

Suspension or conclusion of investigation

(1) The competent minister may suspend or conclude the investigation if he or she is of the opinion that the alleged offence does not require further investigation or the investigation does not substantiate the alleged offence or any other offence.

Report if investigation suspended

(2) If the investigation is suspended, the competent minister must prepare a written report describing the information obtained during the investigation and stating the reasons for its suspension and the action, if any, that the competent minister has taken or proposes to take and send a copy of the report to the applicant. The competent minister must notify the applicant if the investigation is subsequently resumed.

Report when investigation concluded

(3) When the investigation is concluded, the competent minister must prepare a written report describing the information obtained during the investigation and stating the reasons for its conclusion and the action, if any, that the competent minister has taken or proposes to take and send a copy of the report to the applicant and to each person whose conduct was investigated.

Personal information not to be disclosed

(4) A copy of the report sent to a person whose conduct was investigated must not disclose the name or address of the applicant or any other personal information about him or her.

When report need not be sent

(5) If another investigation in relation to the alleged offence is ongoing apart from the application, the competent minister need not send copies of a report described in subsection (2) or (3) until the other investigation is suspended or concluded.

OFFENCES AND PUNISHMENT

Contraventions

(1) Every person who contravenes subsection 32(1) or (2),

section 33, subsection 36(1), 58(1), 60(1) or 61(1) or

section 91 or 92 or any prescribed provision of a regulation or an emergency order, or who fails to comply with an alternative measures agreement the person has entered into under this Act,

(

a) is guilty of an offence punishable on

summary conviction and is liable

(

i) in the case of a corporation, other than a non-profit corporation, to a fine of not more than $300,000,

(ii)

in the case of a non-profit corporation, to a fine of not more than $50,000, and

(iii)

in the case of any other person, to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both; or

(

b) is guilty of an indictable offence and is liable

(

i) in the case of a corporation, other than a non-profit corporation, to a fine of not more than $1,000,000,

(ii)

in the case of a non-profit corporation, to a fine of not more than $250,000, and

(iii)

in the case of any other person, to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both.

Prescription of provisions

(2) A regulation or emergency order may prescribe which of its provisions may give rise to an offence.

Subsequent offence

(3) If a person is convicted of an offence a subsequent time, the amount of the fine for the subsequent offence may, despite subsection (1), be double the amount set out in that subsection.

Continuing offence

(4) A person who commits or continues an offence on more than one day is liable to be convicted for a separate offence for each day on which the offence is committed or continued.

Fines cumulative

(5) A fine imposed for an offence involving more than one animal, plant or other organism may be calculated in respect of each one as though it had been the subject of a separate information and the fine then imposed is the total of that calculation.

Additional fine

(6) If a person is convicted of an offence and the court is satisfied that monetary benefits accrued to the person as a result of the commission of the offence, the court may order the person to pay an additional fine in an amount equal to the court’s estimation of the amount of the monetary benefits, which additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.

Meaning of non-profit corporation

(7) For the purposes of subparagraphs (1)( a )(i), (ii) and (iii) and ( b )(i), (ii) and (iii), non-profit corporation means a corporation, no part of the income of which is payable to, or is otherwise available for, the personal benefit of any proprietor, member or shareholder of the corporation.

Officers, etc., of corporations

If a corporation commits an offence, any officer, director, agent or mandatory of the corporation who directed, authorized, assented to, or acquiesced or participated in, the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.

Offences by employees or agents

In any prosecution for an offence, the accused may be convicted of the offence if it is established that it was committed by an employee, agent or mandatory of the accused, whether or not the employee, agent or mandatory has been prosecuted for the offence.

Due diligence

Due diligence is a defence in a prosecution for an offence.

Venue

A prosecution for an offence may be instituted, heard and determined in the place where the offence was committed, the subject-matter of the prosecution arose, the accused was apprehended or the accused happens to be or is carrying on business.

Sentencing considerations

A court that imposes a sentence shall take into account, in addition to any other principles that it is required to consider, the following factors:

(

a) the harm or risk of harm caused by the commission of the offence;

(

b) whether the offender was found to have committed the offence intentionally, recklessly or inadvertently;

(

c) whether the offender was found by the court to have been negligent or incompetent or to have shown a lack of concern with respect to the commission of the offence;

(

d) any property, benefit or advantage received or receivable by the offender to which, but for the commission of the offence, the offender would not have been entitled;

(

e) any evidence from which the court may reasonably conclude that the offender has a history of non-compliance with legislation designed to protect wildlife species; and

(

f) all available sanctions that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders.

Forfeiture

(1) If a person is convicted of an offence, the convicting court may, in addition to any punishment imposed, order that any seized thing by means of or in relation to which the offence was committed, or any proceeds of its disposition, be forfeited to Her Majesty.

Return if no forfeiture ordered

(2) If the convicting court does not order the forfeiture, the seized thing, or the proceeds of its disposition, must be returned to its lawful owner or the person lawfully entitled to it.

Retention or sale

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

Orders of court

If a person is convicted of an offence, the court may, in addition to any punishment imposed and having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects:

(

a) prohibiting the person from doing any act or engaging in any activity that could, in the opinion of the court, result in the continuation or repetition of the offence;

(

b) directing the person to take any action that the court considers appropriate to remedy or avoid any harm to any wildlife species that resulted or may result from the commission of the offence;

(

c) directing the person to have an environmental audit conducted by a person of a class and at the times specified by the court and directing the person to remedy any deficiencies revealed during the audit;

(

d) directing the person to publish, in any manner that the court considers appropriate, the facts relating to the commission of the offence;

(

e) directing the person to perform community service in accordance with any conditions that the court considers reasonable;

(

f) directing the person to submit to the competent minister, on application to the court by the competent minister within three years after the conviction, any information about the activities of the person that the court considers appropriate;

(

g) directing the person to pay a competent minister or the government of a province or a territory an amount for all or any of the cost of remedial or preventive action taken, or to be taken, by or on behalf of the competent minister or that government as a result of the commission of the offence;

(

h) directing the person to pay, in the manner prescribed by the court, an amount for the purpose of conducting research into the protection of the wildlife species in respect of which the offence was committed;

(

i) directing the person to pay, in the manner prescribed by the court, an amount to an educational institution for scholarships for students enrolled in environmental studies;

(

j) directing the person to post a bond or pay to the court an amount that the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement under this section; and

(

k) requiring the person to comply with any other conditions that the court considers appropriate for securing the person’s good conduct and for preventing the person from repeating the offence or committing other offences.

Suspended sentence

(1) If a person is convicted of an offence and the court suspends the passing of sentence under paragraph 731(1)(

a) of the Criminal Code , the court may, in addition to any probation order made under that Act, make an order containing one or more of the prohibitions, directions or requirements mentioned in

section 105.

Imposition of sentence

(2) If the person does not comply with the order or is convicted of another offence, within three years after the order is made, the court may, on the application of the prosecution, impose any sentence that could have been imposed if the passing of sentence had not been suspended.

Limitation period

(1) Proceedings by way of

summary conviction in respect of an offence may be commenced at any time within, but not later than, two years after the day on which the subject-matter of the proceedings became known to the competent minister.

Competent minister’s certificate

(2) A document appearing to have been issued by the competent minister, certifying the day on which the subject-matter of any proceedings became known to the competent minister, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is proof of the matter asserted in it.

References to the competent minister

(3) A reference to the competent minister in this

section includes a provincial or territorial minister if the competent minister has delegated responsibility for the enforcement of this Act, the regulations or an emergency order in the province or territory to the provincial or territorial minister and the offence is alleged to have been committed in the province or territory.

ALTERNATIVE MEASURES

When alternative measures may be used

(1) Alternative measures may be used to deal with a person who is alleged to have committed an offence, but only if it is not inconsistent with the purposes of this Act to do so and the following conditions are met:

(

a) the measures are part of a program of alternative measures authorized by the Attorney General, after consultation with the competent minister;

(

b) an information has been laid in respect of the offence;

(

c) the Attorney General, after consultation with the competent minister, is satisfied that the alternative measures would be appropriate, having regard to the nature of the offence, the circumstances surrounding its commission and the following factors, namely,

(

i) the protection of species at risk,

(ii)

the person’s history of compliance with this Act,

(iii)

whether the offence is a repeated occurrence,

(iv)

any allegation that information is being or was concealed or other attempts to subvert the purposes and requirements of this Act are being or have been made, and

(

v) whether any remedial or preventive action has been taken by or on behalf of the person in relation to the offence;

(

d) the person applies, in accordance with regulations made under paragraph 119( a ), to participate in the alternative measures after having been informed of them;

(

e) the person and the Attorney General have concluded an agreement respecting the alternative measures within 180 days after the person has, with respect to the offence, been served with a summons, been issued an appearance notice or entered into a promise to appear or a recognizance;

(

f) before consenting to participate in the alternative measures, the person has been advised of the right to be represented by counsel;

(

g) the person accepts responsibility for the act or omission that forms the basis of the offence;

(

h) there is, in the opinion of the Attorney General, sufficient evidence to proceed with the prosecution of the offence; and

(

i) the prosecution of the offence is not barred at law.

Restriction on use

(2) Alternative measures may not be used to deal with a person who

(

a) denies participation or involvement in the commission of the alleged offence; or

(

b) expresses the wish to have any charge against them dealt with by the court.

Admissions not admissible in evidence

(3) No admission, confession or statement accepting responsibility for a given act or omission made by a person as a condition of being dealt with by alternative measures is admissible in evidence against the person in any civil or criminal proceedings.

Dismissal of charge

(4) A court must dismiss a charge laid against a person in respect of an offence if alternative measures have been used to deal with the person in respect of the alleged offence and

(

a) the court is satisfied on a balance of probabilities that the person has totally complied with the agreement; or

(

b) the court is satisfied on a balance of probabilities that the person has partially complied with the agreement and, in the opinion of the court, the prosecution of the charge would be unfair, having regard to the circumstances and the person’s performance with respect to the agreement.

No bar to proceedings

(5) The use of alternative measures in respect of a person who is alleged to have committed an offence is not a bar to any proceedings against the person under this Act.

Laying of information, etc.

(6) This

section does not prevent any person from laying an information, obtaining the issue or confirmation of any process, or proceeding with the prosecution of any offence, in accordance with law.

Terms and conditions in agreement

(1) An alternative measures agreement may contain any terms and conditions, including

(

a) terms and conditions having any or all of the effects set out in

section 105 or any other terms and conditions having any of the effects prescribed by regulations that the Attorney General, after consultation with the competent minister, considers appropriate; and

(

b) terms and conditions relating to the costs associated with ensuring compliance with the agreement.

Supervision of compliance

(2) Any governmental organization may supervise compliance with the agreement.

Duration of agreement

An alternative measures agreement comes into effect on the day on which it is concluded or on any later day that is specified in the agreement and continues in effect for a period of not more than three years.

Filing in court for purpose of public access

(1) The Attorney General must consult the competent minister before concluding an alternative measures agreement and, subject to subsection (5), must have the agreement filed with the court in which the information was laid within 30 days after the agreement is concluded. The agreement is to be filed as part of the court record of the proceedings to which the public has access.

Reports

(2) A report relating to the administration of, and compliance with, the agreement must be filed with the same court by the Attorney General immediately after all the terms and conditions of the agreement have been complied with or the charges in respect of which the agreement was entered into have been dismissed.

Third party information

(3) Subject to subsection (4), if any of the following information is to be part of the agreement or the report, it must be set out in a

schedule to the agreement or to the report:

(

a) trade secrets of any person;

(

b) financial, commercial, scientific or technical information that is confidential information and is treated consistently in a confidential manner by any person;

(

c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to any person, or could reasonably be expected to prejudice the competitive position of any person; or

(

d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of any person.

Agreement on information to be in

schedule

(4) The parties to the agreement must agree on which information that is to be part of the agreement or the report is information that meets the requirements of paragraphs (3)(

a) to ( d ).

How

schedule is to be kept secret

(5) The

schedule is confidential and must not be filed with the court.

Prohibition of disclosure

(6) The competent minister must not disclose any information set out in a

schedule to the agreement or to the report, except as authorized by

section 117 or the Access to Information Act .

Stay of proceedings

(1) Despite

section 579 of the Criminal Code ,