ARCHIVED — Vol. 150, No. 15 — April 9, 2016

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Designation of Regulatory Provisions for Purposes of Enforcement (Migratory Birds Convention Act, 1994) Regulations

Statutory authority

Migratory Birds Convention Act, 1994

Sponsoring department

Department of the Environment

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Environmental Enforcement Act (EEA) (see footnote 1) received royal assent on June 18, 2009, and introduces a new fine regime to be applied by courts following a successful prosecution pursuant to any of the nine environmental statutes that the EEA amends. (see footnote 2) Under the new regime, designated offences involving direct harm or risk of harm to the environment, or obstruction of authority, are subject to minimum fines and an increased range of fines.

The EEA explicitly identifies the statutory provisions that, if contravened, subject an offender to the new fine regime; however, it does not identify which provisions of regulations made under those statutes, if contravened, impose the new regime. Rather, the EEA amends the nine environmental statutes referenced herein to provide the necessary authority to identify such provisions by regulation. Regulations are thus required to identify regulatory offences under the Migratory Birds Convention Act, 1994 (MBCA) that would be subject to the new fine regime established by the EEA.

Objectives

The objectives of the proposed Designation of Regulatory Provisions for Purposes of Enforcement (Migratory Birds Convention Act, 1994) Regulations (the proposed Regulations) are to implement the fine regime introduced by the EEA and designate regulatory offences under the MBCA, in order to give guidance to the courts to ensure that fines reflect the seriousness of designated offences and the principles of sentencing under the MBCA. (see footnote 3)

Description

The proposed Regulations would designate regulatory offences, under the MBCA, involving direct harm or risk of harm to the environment, or obstruction of authority, that would be subject to the minimum fines and increased range of fines introduced under the EEA (see Table 1). Offences proposed for designation include offences under the Migratory Birds Regulations and the Migratory Bird Sanctuary Regulations.

Table 1: Fines for designated offences (see note a)

Offender

Summary Conviction

Conviction on Indictment

Minimum Fine

Maximum Fine

Minimum Fine

Maximum Fine

Individuals

$5,000

$300,000

$15,000

$1,000,000

Small revenue corporations or ships under 7 500 tonnes deadweight (see note b)

$25,000

$2,000,000

$75,000

$4,000,000

Corporations, ships of 7 500 tonnes deadweight or over, or other persons

$100,000

$4,000,000

$500,000

$6,000,000

  • Note a
    The fine amounts shown in this table are for first offences. The applicable fine doubles in each case for a second or subsequent offence.
  • Note b
    Small revenue corporations are considered to be corporations with revenues under $5,000,000 in the 12 months preceding the offence in question.

The contravention of a regulatory provision designated under the proposed Regulations would not necessarily lead to a prosecution. Rather, the enforcement officer would continue to determine the enforcement measures to be applied to a given contravention, based on due consideration of what is most appropriate in the circumstances. In cases involving minor situations of non- compliance, a warning, compliance order, ticket or administrative monetary penalty may be appropriate. (see footnote 4) In these cases, the fine regime described in Table 1 would not apply. In cases involving a serious level of non- compliance, however, prosecution may be the proper avenue for enforcement purposes. In such cases, the fine regime described in Table 1 would apply upon conviction.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this regulatory proposal, as there is no change in administrative costs incurred by business.

Small business lens

The small business lens does not apply to this regulatory proposal, as there are no costs (or insignificant costs) incurred by small business.

Consultation

No formal consultation was held prior to the publication of the proposed Regulations in the Canada Gazette, Part I, since they would not impose any incremental administrative or compliance costs on the public, the federal government, indigenous peoples or other stakeholders (i.e. consumers or industries).

On December 15, 2012, the proposed Regulations were published in the Canada Gazette, Part I, for a 30-day public comment period. No concerns were expressed during this comment period. The Department of the Environment (the Department) responded to four submissions following the comment period that were received from partners and stakeholders requesting additional information and clarification on the purpose of the proposed Regulations and how they would be implemented.

Given the lapse of time from their original publication, the proposed Regulations have been republished in the Canada Gazette, Part I, to initiate a 60-day comment period during which interested parties are invited to submit their written comments.

Rationale

The proposed Regulations are necessary to implement the new fine regime introduced by the EEA for the MBCA and would help ensure that court-imposed fines reflect the seriousness of offences under the MBCA. There are minimal impacts directly associated with the proposed Regulations, however, as they neither amend existing obligations or requirements, nor impose new obligations or requirements on the public, or other partners or stakeholders. No additional administrative or compliance burden would be incurred by any industry or small business as a result of the proposed Regulations.

Strategic environmental assessment

As required by the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan was conducted and it was concluded that there would be no expected important environmental effects, either positive or negative; ac- cordingly, a strategic environmental assessment is not required. (see footnote 5)

Implementation, enforcement and service standards

The proposed Regulations would implement the new fine regime for designated regulatory provisions under the MBCA. Given that the proposed Regulations do not impose any new or additional obligation or requirement on the public or other stakeholders, they do not result in the development of any new program or service. Therefore, developing an implementation plan or establishing service standards is not necessary.

As of 2010, the Minister of the Environment is required to undertake a review every 10 years of all penalty and sentencing provisions under the MBCA, in accordance with section 18.24 of that Act. The effectiveness of the fine regime implemented by the proposed Regulations would be assessed as part of these reviews, using the Department’s existing enforcement database and systems to gather data on relevant factors such as fine amounts.

Contacts

Laura Farquharson
Executive Director
Legislative Governance Division
Legislative and Regulatory Affairs Directorate
Environmental Stewardship Branch
Department of the Environment
351 Saint-Joseph Boulevard
Gatineau, Quebec
K1A 0H3
Fax: 819-420-7391
Email: ec.legis.gov.ec@canada.ca

Yves Bourassa
Director
Regulatory Analysis and Valuation Division
Economic Analysis Directorate
Strategic Policy Branch
Department of the Environment
200 Sacré-Cœur Boulevard
Gatineau, Quebec
K1A 0H3
Email: ec.darv-ravd.ec@canada.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to paragraph 12(1)(l) (see footnote a) of the Migratory Birds Convention Act, 1994 (see footnote b), proposes to make the annexed Designation of Regulatory Provisions for Purposes of Enforcement (Migratory Birds Convention Act, 1994) Regulations.

Interested persons may make representations with respect to the proposed Regulations to the Minister of the Environment within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Laura Farquharson, Executive Director, Legislative Governance, Department of the Environment, Gatineau, Quebec K1A 0H3 (fax: 819-420-7391; email: ec.legis.gov.ec@canada.ca).

Ottawa, March 24, 2016

Jurica Čapkun
Assistant Clerk of the Privy Council

Designation of Regulatory Provisions for Purposes of Enforcement (Migratory Birds Convention Act, 1994) Regulations

Designated provisions

1 The provisions set out in the schedule are designated for the purposes of paragraph 13(1)(c) of the Migratory Birds Convention Act, 1994.

Coming into force

2 These Regulations come into force on the day on which section 101 of the Environmental Enforcement Act, chapter 14 of the Statutes of Canada, 2009, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

SCHEDULE

(Section 1)

Designated Provisions

Item

Column 1

Regulations

Column 2

Provisions

1

Migratory Birds Regulations

  • (a) subsections 5(1), (2), (3), (4) and (9)
  • (b) section 6
  • (c) section 7
  • (d) section 9
  • (e) subsections 10(1) and (2)
  • (f) subsection 12(1)
  • (g) subsection 12.1(2)
  • (h) subsection 13(3)
  • (i) subsection 14(1)
  • (j) subsections 15(1), (2) and (3)
  • (k) subsection 15.1(1)
  • (l) subsections 16(1) and (1.1)
  • (m) section 17
  • (n) subsections 20(1) and (4)
  • (o) section 21
  • (p) subsection 24(3)
  • (q) subsections 27(3) and (5)
  • (r) subsection 31(2)
  • (s) subsection 32(3)
  • (t) section 33
  • (u) subsection 37(3)

2

Migratory Bird Sanctuary Regulations

  • (a) subsection 3(2)
  • (b) subsection 4(1)
  • (c) subsection 5(1)
  • (d) section 6
  • (e) section 8
  • (f) section 8.1
  • (g) subsection 10(1)

[15-1-o]

  • Footnote 1
    The long title of the EEA is An Act to amend certain Acts that relate to the environment and to enact provisions respecting the enforcement of certain Acts that relate to the environment.
  • Footnote 2
    The EEA amends the following nine statutes: the Canadian Environmental Protection Act, 1999; the Antarctic Environmental Protection Act; the Canada Wildlife Act; the International River Improvements Act; the Migratory Birds Convention Act, 1994; the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act; the Canada National Parks Act; the Canada National Marine Conservation Areas Act; and the Saguenay St. Lawrence Marine Park Act.
  • Footnote 3
    The Department of the Environment is currently developing proposed Designation of Regulatory Provisions for Purposes of Enforcement (Canada Wildlife Act) Regulations. The Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999) came into force in June 2012.
  • Footnote 4
    The Department is currently developing proposed regulations that would implement an administrative monetary penalties regime pursuant to the Environmental Violations Administrative Monetary Penalties Act.
  • Footnote 5
    Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals. Canadian Environmental Assessment Agency: www.ceaa.gc.ca/default.asp?lang=En&n=B3186435-1.
  • Footnote a
    S.C. 2009, c. 14, s. 101
  • Footnote b
    S.C. 1994, c. 22