Research publications

Contents

Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.

• 1  Background
  
  • 1.1  The Oceans Act: A Framework for Canada’s Oceans Management Strategy
    • 1.1.1  Commitments to Global Conservation Goals
  • 1.2  The Canada Petroleum Resources Act: Allocation of Rights to Explore and Develop Petroleum Resources
• 2  Description and Analysis
  • 2.1  Amendments to the Oceans Act
    • 2.1.1  Reasons for Designating a Marine Protected Area
    • 2.1.2  Marine Protected Areas Designated by Ministerial Orders
    • 2.1.3  Time Limit on the Establishment of Marine Protected Areas
    • 2.1.4  Application of the Precautionary Approach When Deciding to Establish Marine Protected Areas
    • 2.1.5  Administration and Enforcement
      • 2.1.5.1  Enforcement Officers’ Powers
      • 2.1.5.2  Direction and Detention of Ships
      • 2.1.5.3  Compliance Orders
      • 2.1.5.4  Release of Seized Fish
    • 2.1.6  Offences and Punishment
      • 2.1.6.1  Fines
      • 2.1.6.2  Contribution to Marine Conservation Activities
      • 2.1.6.3  Limitation Period for Proceedings by Way of Summary Conviction
  • 2.2  Amendments to the Canada Petroleum Resources Act
    • 2.2.1  Prohibition of Oil and Gas Activities
    • 2.2.2  Surrender and Cancellation of a Company’s Oil and Gas Interest
• 3  Commentary
  • 3.1  Marine Protected Areas Designated by Ministerial Orders
  • 3.2  Application of the Precautionary Approach
  • 3.3  Restrictions on Activities in Marine Protected Areas
• Notes

1  Background

Bill C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act,1 was introduced in the House of Commons on 15 June 2017.

The bill amends the Oceans Act2 to empower the Minister of Fisheries and Oceans,3 through a ministerial order, to designate a marine protected area (MPA) and to prohibit for up to five years certain activities within that area.4 By the end of that period, the Minister must recommend to the Governor in Council either that the order be replaced by regulations permanently designating the area as an MPA or that the order be repealed.

Bill C-55 requires that when deciding to establish an MPA, the Governor in Council and the minister apply the precautionary approach, whereby a lack of scientific certainty regarding the risks posed by an activity are not to be used to postpone acting to prevent environmental degradation.5 It also amends the Act to provide that ships6 become subject to the Oceans Act offence provisions and proposes new offences regarding prohibited activities within MPAs designated by ministerial orders.

In addition, Bill C-55 amends the Canada Petroleum Resources Act7 to empower the competent minister to cancel, with compensation, an oil and gas interest in areas where MPAs are designated under the Oceans Act. The bill also gives the Governor in Council the authority to prohibit oil and gas activities in MPAs designated under the Oceans Act.

Bill C-55 was referred to the House of Commons Standing Committee on Fisheries and Oceans, which amended the bill to provide for the maintenance of ecological integrity as a reason for designating an MPA. Bill C-55 was also amended to ensure that the designation of MPAs by ministerial order be conducted in a manner that is not inconsistent with land claims agreements. The amended bill was reported to the House of Commons on 11 December 2017.8

1.1  The Oceans Act: A Framework for Canada’s Oceans Management Strategy

The Oceans Act provides the legal framework for Canada’s Oceans Management Strategy.9 Section 30 of the Act specifies that the strategy is based on three principles: sustainable development, integrated management of activities, and use of the precautionary approach.

The Act then elaborates on two complementary parts: the development and implementation both of integrated management plans (sections 31 and 32) and of a national network of MPAs – areas of ocean space needing special protection (section 35).

Under section 35(3), MPAs are designated by the Governor in Council, on the recommendation of the Minister of Fisheries and Oceans. Section 35(3) specifies that MPAs are created in order to conserve and protect one or more of the following:

• commercial and non-commercial fishery resources (including marine mammals and their habitats);
• endangered or threatened marine species and their habitats;
• unique marine habitats; and
• marine areas of high biodiversity or biological productivity.

1.1.1  Commitments to Global Conservation Goals

Recognizing global declines in marine biodiversity and habitat, parties to the 2002 World Summit on Sustainable Development, including Canada, agreed to establish national networks of MPAs.10 At the 2010 conference of the parties to the United Nations Convention on Biological Diversity in Nagoya, Aichi Prefecture, Japan, Canada agreed to the Strategic Plan for Biodiversity 2011–2020, which includes a set of 20 targets known as the “Aichi Targets.”

Aichi Target 11 committed parties to a goal of protecting, by 2020, at least 10% of coastal and marine areas.11 In recognition of this objective and the need to support the momentum towards conservation of marine biodiversity, the 2015 mandate letter for the Minister of Fisheries, Oceans and the Canadian Coast Guard set a priority to “increase the proportion of Canada’s marine and coastal areas that are protected – to five percent by 2017, and ten percent by 2020.”12 Currently, about 8% of Canada’s oceans are recognized as protected by federal and provincial measures.13 Included in these areas are 11 MPAs designated under the Oceans Act.14

In June 2016, given the pace of establishing MPAs – on average between five and seven years – the Government of Canada announced a five-point plan to help meet its marine conservation targets.15 This plan includes amending the Oceans Act to facilitate the designation process for MPAs.

1.2  The Canada Petroleum Resources Act: Allocation of Rights to Explore and Develop Petroleum Resources

The Canada Petroleum Resources Act is one of the key federal laws governing offshore oil and gas exploration. The Act authorizes the issuance of title rights to explore for, develop and produce petroleum resources in areas under federal jurisdiction that are not covered by other legislation, as are areas under the jurisdiction of the Canada–Newfoundland and Labrador Offshore Petroleum Board and the Canada–Nova Scotia Offshore Petroleum Board, for example. The Canada Petroleum Resources Act also governs the lease of oil and gas rights and the setting of royalties on production.16

Ministerial responsibility for the Canada Petroleum Resources Act is divided in the Act as follows:

• The Minister of Indian Affairs and Northern Development is responsible for the administration of the Act where it applies in the territories.
• The Minister of Natural Resources is responsible for the administration of the Act in all other areas.

2  Description and Analysis

2.1  Amendments to the Oceans Act

2.1.1  Reasons for Designating a Marine Protected Area

Clause 4 of Bill C-55 provides for the maintenance of ecological integrity as a reason for designating an MPA; this is in addition to the five reasons currently listed in section 35(1) of the Act. Ecological integrity is defined in the proposed section 35(1.1) as a condition in which the structure, composition and function of ecosystems are undisturbed by any human activity; natural ecological processes are intact and self-sustaining; ecosystems evolve naturally; and an ecosystem’s capacity for self-renewal and its biodiversity are maintained.

The concept of ecological integrity proposed by Bill C-55 is consistent with the definition put forward by the Panel on the Ecological Integrity of Canada’s National Parks, struck in 1998 by the Parks Canada Agency.17 Although, under section 8(2) of the Canada National Parks Act,18 ensuring ecological integrity is the minister’s first management priority for terrestrial national parks, there is no such provision in the Oceans Act for MPAs. Therefore, in its 2017 report on protected areas, the House of Commons Standing Committee on Environment and Sustainable Development recommended that the Government of Canada amend the Canada National Marine Conservation Areas Act and the Oceans Act in order to “enshrine the restoration and maintenance of ecological integrity as the overriding priority for Canada’s marine conservation areas in parallel with the Canada National Parks Act.”19

Clause 4 of Bill C-55 also proposes that, in coordinating the development of a national network of MPAs, the minister shall ensure that clearly identified conservation objectives are set for each MPA, and that the network is ecologically representative, covering “diverse habitat types, biogeographic regions and environmental conditions.” Ecological representation is also called for by Aichi Target 11, the International Union for Conservation of Nature’s World Commission on Protected Areas,20 and the National Framework for Canada’s Network of Marine Protected Areas.21

2.1.2  Marine Protected Areas Designated by Ministerial Orders

Clause 5 of Bill C-55 empowers the Minister of Fisheries and Oceans to designate an MPA by order until the area’s final designation through Governor in Council regulations is in place (new sections 35.1(2) and 35.3(1)). The creation of such interim protection for an MPA is at the discretion of the minister, and this discretion should be exercised in a manner that is “not inconsistent with a land claims agreement that has been given effect and has been ratified or approved by an Act of Parliament.”

Bill C-55 “freezes the footprint”22 of human activity within MPAs designated by ministerial orders. Any activity that disturbs, damages, destroys or removes from the designated area any unique geological or archaeological features or any living marine organism or any part of its habitat or is likely to do so and is not part of a class of ongoing activities is prohibited by the ministerial order (new section 35.1(2)(b)). Classes of activities that are ongoing activities in the MPA must be listed in the ministerial order (new section 35.1(2)(a)).

An “ongoing” activity is defined in new section 35.1(1) as an activity taking place in an area granted interim protection which:

• was lawfully carried out during the year before the designation of the MPA under interim protection and does not require authorization;
• was lawfully carried out during the year before the designation of the MPA under interim protection and has been authorized; or
• was not carried out before the designation of the MPA under interim protection, but was authorized and continues to be authorized.

Certain ongoing activities regulated under federal fisheries legislation may still be restricted by the ministerial order (new section 35.1(2)(c)).

Bill C-55 also empowers the competent minister to permit, subject to conditions, any activity that a foreign national,23 an entity incorporated or formed by or under the laws of a country other than Canada, a foreign ship24 or a foreign state carries out within an MPA designated by a ministerial order (new section 35.1(2)(d)).

2.1.3  Time Limit on the Establishment of Marine Protected Areas

New section 35.3(1) requires that, not later than the fifth anniversary of the day on which the order to designate an MPA comes into force, the Minister of Fisheries and Oceans:

• recommend that the Governor in Council make a regulation under section 35(3) to designate an MPA covering at least part of the MPA that had originally been designated by order; or
• repeal the order.

2.1.4  Application of the Precautionary Approach When Deciding to Establish Marine Protected Areas

Both the preamble to the Oceans Act and the Oceans Management Strategy principles set out in section 30 of the Act refer to the application of the precautionary approach, mentioned in the preamble as related to the “conservation, management and exploitation of marine resources in order to protect these resources and preserve the marine environment.”

Clause 5 of the bill adds new section 35.2 to the Act, to provide that the Governor in Council and the Minister of Fisheries and Oceans cannot use the “lack of scientific certainty regarding the risks posed by any activity that may be carried out in certain areas of the sea” as a reason to postpone or refrain from designating MPAs and regulating activities within those protected areas.

2.1.5  Administraion and Enforcement

Clauses 7 to 12 establish a framework to promote compliance with the amended Oceans Act and align the enforcement powers of the Oceans Act with provisions in other federal legislation, such as the Canadian Environmental Protection Act, 1999 and the Canada Shipping Act, 2001.

2.1.5.1  Enforcement Officers’ Powers

Clause 10(1) amends section 39.1(1) of the Oceans Act to specify that the places enforcement officers may enter and inspect include a conveyance. “Conveyance” is not defined in the Oceans Act, but in the definition in the Canadian Environmental Protection Act, 1999, it is said to include “any vehicle, ship or aircraft.”

Clause 10(3) amends section 39.1(1) to expand the powers of enforcement officers to permit them to:

• use or cause to be used any computer system or data processing system at the place being inspected to examine any data contained in, or available to, the system;
• reproduce any record or cause it to be reproduced from the data; and
• use or cause to be used any copying equipment at the place being inspected to make copies of any book, record, electronic data or other document.

Clause 10(4) amends enforcement officers’ seizure powers to permit officers to seize anything that they have reasonable grounds to believe was obtained or used in contravention of the Oceans Act or its regulations or is something in relation to which the Act or its regulations have been contravened (new section 39.1(1.2)).

This clause also provides that enforcement officers, as well as any person acting under their direction and control, may enter and pass through private property, other than a dwelling-place, in order to perform their duties (new sections 39.1(2.1) and 39.1(2.2)).

2.1.5.2  Direction and Detention of Ships

Clause 11 provides for the direction and detention of ships when a ship, or a person on board that ship, has committed, is committing or is about to commit an offence under the Oceans Act and when the ship was, is being or is about to be used in connection with the commission of the offence (new sections 39.2 and 39.21). These provisions are similar to existing provisions in the Canadian Environmental Protection Act, 1999 (section 225).

2.1.5.3  Compliance Orders

Clause 11 also gives an enforcement officer the power to issue a compliance order to a person committing – or about to commit – an offence under the Oceans Act (new section 39.22). The compliance order may direct the offender to take, at the offender’s own expense, the specific measures provided in new section 39.22(4) that the enforcement officer considers necessary to protect the marine environment.

In cases where a person to whom a compliance order is issued fails to take any of the measures specified in the order, an enforcement officer or other person authorized by an enforcement officer may enter the property and take measures deemed necessary in the circumstances (new section 39.25).

2.1.5.4  Release of Seized Fish

Clause 12(2) provides that an enforcement officer who seizes any fish may, at the time of the seizure, return to the water any fish that he or she believes to be alive (new section 39.3(3.1)).

2.1.6  Offences and Punishment

Clauses 13 to 18 make it an offence to contravene certain provisions of the Oceans Act, and set out the punishments that apply.

2.1.6.1  Fines

Under clause 13, any individual or corporation that fails to comply with a ship detention or compliance order or that, in the absence of due diligence, contravenes the prohibitions established for MPAs – including MPAs designated by ministerial orders – pursuant to the Oceans Act and its regulations is liable to pay the following fines (amended section 39.6(1) and new section 39.63):

• on conviction on indictment:
  • a maximum fine of
    • $2 million for individuals,
    • $8 million for small revenue corporations, or
    • $12 million for other corporations; or
• on summary conviction:
  • a maximum fine of
    • $600,000 for individuals,
    • $4 million for small revenue corporations, or
    • $8 million for other corporations.

Similar to the Environmental Enforcement Act,25 under Bill C-55, small revenue corporations are considered to be corporations with revenues under $5 million in the 12 months preceding the offence in question (new section 39.6(5)). All fines received for the commission of an offence under the Oceans Act are to be credited to the Environmental Damages Fund (EDF) (new section 39.66). Administered by Environment and Climate Change Canada, the EDF provides a mechanism to direct funds received as a result of fines, court orders and voluntary payments to projects that will benefit the natural environment.26

Clause 13 also provides that a person may be convicted for separate offences for each day that the offence is committed or continued (new section 39.64(1)). Despite the maximum limits specified in section 39.6, fines can be cumulative if an offence involves more than one animal, plant, other organism or object (new section 39.64(2)). Additional fines may also be set if a person acquired any property, benefit or advantage as a result of the commission of the offence (new section 39.64(3)).

Where a ship commits an offence under clause 13, a number of individuals, including owners, owning-corporation directors and officers, operators, masters and chief engineers, can be considered liable on conviction to the punishment provided for the offence (new sections 39.6(2), 39.61 and 39.62).

Clause 13 also sets out fines for persons and ships convicted of obstruction of an enforcement officer (new sections 39.6(3) and 39.6(4)).

2.1.6.2  Contribution to Marine Conservation Activities

In addition to any punishment imposed upon conviction for an offence under the Oceans Act, clause 14 amends section 39.9 to provide that the court may also make an order directing the offender to pay an amount to:

• monitor the environmental effects of activities or structures in any MPA;
• promote the conservation, protection or restoration of any MPA;
• enable conservation research regarding any MPA;
• support work related to MPAs conducted by environmental or other groups; and
• support an educational institution, including through scholarships for students enrolled in studies related to the environment.

2.1.6.3  Limitation Period for Proceedings by Way of Summary Conviction

Clause 16 replaces the current section 39.11 of the Oceans Act with new section 39.92 to modify the limitation period for proceedings by way of summary conviction for an offence under the Act. This limitation period is set to five years after the day on which the offence was committed instead of “two years after the day on which the subject-matter of the proceedings became known to the Minister,” as was previously the case.

The transitional provision in clause 18 specifies that the current limitation period of two years continues to apply for an offence that was committed before the new section 39.92 comes into force.

2.2  Amendments to the Canada Petroleum Resources Act

2.2.1  Prohibition of Oil and Gas Activities

Oil and gas activities are explicitly prohibited in national marine conservation areas managed by Parks Canada under section 13 of the Canada National Marine Conservation Areas Act.27 The Oceans Act, however, imposes no similar prohibitions. Therefore, in MPAs, oil and gas activities may be allowed, subject to conditions.

Clause 19 provides that certain oil and gas activities regulated under the Canada Petroleum Resources Act, including ongoing activities, may be prohibited by the Governor in Council within MPAs (amended section 12(1)).

2.2.2  Surrender and Cancellation of a Company’s Oil and Gas Interest

Clause 20 allows the competent minister to enter into negotiations for compensation with an oil and gas interest owner for the surrender the owner’s interest (new sections 12.1(1) and 12.2(1)), if:

• the interest is located within an area that is designated or may be designated as an MPA under section 35 of the Oceans Act; and
• the Minister of Fisheries and Oceans has recommended that the interest be cancelled and surrendered to the Crown.

Clause 20 also empowers the competent minister to cancel an oil and gas interest and specify the amount of compensation, subject to the hearings and judicial review process detailed in section 106 of the Canada Petroleum Resources Act (new sections 12.1(3), 12.1(4) and 12.2(2)), if:

• the interest owner did not enter into negotiations with the minister within the time period specified in the notice sent to the interest owner (new section 12.1(3)(a));
• in the opinion of the minister, the compensation to be granted to the interest owner has not been determined during the negotiations within a reasonable time (new section 12.1(3)(b)); or
• in the opinion of the minister, the negotiations do not result in the surrender of the interest within a reasonable time even though the compensation has been determined between the two parties (new section 12.1(3)(c)).

3  Commentary

3.1  Marine Protected Areas Designated by Ministerial Orders

Some organizations have expressed support for Bill C-55. For example, the Living Oceans Society has published a news release in support of the new Oceans Act provision allowing MPAs to be designated by ministerial orders and requiring that those MPAs be considered for permanent designation within five years. The Society has stated, “Getting an MPA through the planning stages and on to official designation has taken far too long in the past. The process has to be accelerated if we are to meet our international commitment.”28

West Coast Environmental Law (WCEL) has suggested that the statutory deadline of five years for the permanent designation of an MPA after its establishment by a ministerial order will “make the process more efficient and time-sensitive.”29 However, WCEL has argued that these deadlines should be “implemented for all [proposed] MPAs, no matter how they are designated.”

In contrast, on 18 September 2017, in a member’s statement in the Legislative Assembly of Nunavut, Honourable Johnny Mike criticized the federal government for not properly consulting Nunavummiut (the people inhabiting Nunavut) on the potential impacts of Bill C-55.30 His comments echo the 31 August 2017 statement released by the Northern Premiers’ Forum indicating that

the proposed amendments to the Oceans Act and the Canada Petroleum Resources Act included in Bill C-55 allow for the creation of Interim Marine Protected Areas by a federal minister without prior consultation. This amendment should not be part of Bill C-55.31

3.2  Application of the Precautionary Approach

The Canadian Parks and Wilderness Society (CPAWS) has expressed support for the application of the precautionary approach in the establishment of MPAs, stating, “Scientific studies take time, leaving sensitive ecosystems exposed to harmful human activities for years simply because we don’t have enough data.”32

While supporting the precautionary approach, commercial fish harvesters have pointed to the insufficient baseline environmental data and the lack of resources for scientific research at the Department of Fisheries and Oceans, which have resulted in the department’s adopting an overly precautious stance. In their view, it would be a “huge” challenge for commercial fisheries to contend with new MPAs in addition to existing fisheries management measures.33

3.3  Restrictions on Activities in Marine Protected Areas

While environmental non-governmental organizations support freezing the footprint of human activities in MPAs designated by ministerial orders, CPAWS has cautioned that this might not be enough. The organization has stated that “existing activities pose significant threats to known ecological values, so freezing the footprint would offer little protection to vulnerable ecosystems.”34

In contrast, the Inuvialuit Regional Corporation (IRC) has expressed concerns regarding the potential negative economic and social impacts of the freezing of the footprint of human activities in designated MPAs. In a letter sent to the Minister of Fisheries and Oceans on 26 April 2017, the IRC suggested that prospective proponents – including Inuvialuit businesses – will “decide not to venture into areas where the Minister is authorized to establish an interim MPA through Ministerial Order because of the risk that operations will be frozen for a period of time.”

WCEL and several other participants in the ongoing study on MPAs by the House of Commons Standing Committee on Fisheries and Oceans have emphasized the need for minimum protection standards for all MPAs. Rashid Sumaila, a scientist at the University of British Columbia, for example, has indicated that minimum protection standards are required to prohibit the most damaging activities to marine biodiversity: oil and gas exploration and exploitation, undersea mining, ocean waste dumping, and “industrial large-scale” fisheries.35

According to the Nunavut Planning Commission, the lengthy process of establishing protection measures means sensitive areas may be largely unprotected while studies and discussions are ongoing. Therefore, the Commission has recommended that the Oceans Act “provide for the establishment of non-permanent interim protection measures to allow temporary restrictions for the purpose of studying the effects of imposing MPAs.”36

The Assembly of First Nations (AFN) has expressed concerns regarding “wholesome engagement and consultations” on the proposed changes to the Oceans Act. A resolution at the 2017 AFN Annual General Assembly in Regina called on the Minister of Fisheries and Oceans to

provide financial resources to create a First Nations Oceans Act Working Group on the proposed changes to the Oceans Act that will focus on providing technical core support for First Nations to assess impacts or benefits to rights holders in the legislative, regulatory and policy changes.37

The Chamber of Shipping of British Columbia has stated that the proposed amendments to the Oceans Act, including new enforcement powers to direct a ship to any place in Canadian waters and detain a ship, are a “significant concern to our industry.”38 In his testimony to the House of Commons Standing Committee on Fisheries and Oceans, the president of the Chamber of Shipping also submitted that the “scale of punishments appears extreme and in the case of small vessel operators, is clearly egregious and could result in undue harm to coastal businesses and the many communities they serve.”39

Regarding restrictions on oil and gas activities proposed in Bill C-55, in a news release, CPAWS stated that such restrictions are a “great improvement, as the Oceans Act currently contains no explicit prohibitions on oil and gas activities, unlike the National Marine Conservation Areas Act.”40 However, CPAWS was “disappointed that these changes on oil and gas activities do not apply in areas off Newfoundland and Labrador and Nova Scotia where offshore petroleum boards regulate oil and gas activities.”

Notes

*  Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]