Vol. 151, No. 12 — June 14, 2017
Registration
SOR/2017-108 June 2, 2017
MIGRATORY BIRDS CONVENTION ACT, 1994
Designation of Regulatory Provisions for Purposes of Enforcement (Migratory Birds Convention Act, 1994) Regulations
P.C. 2017-567 June 2, 2017
His Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to paragraph 12(1)(l) (see footnote a) of the Migratory Birds Convention Act, 1994 (see footnote b), makes the annexed Designation of Regulatory Provisions for Purposes of Enforcement (Migratory Birds Convention Act, 1994) Regulations.
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 |
Column 2 |
|---|---|---|
1 |
Migratory Birds Regulations |
|
2 |
Migratory Bird Sanctuary Regulations |
|
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 introduced a new fine regime to be applied by courts following a conviction 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, subject an offender to minimum fines and increased maximum fines upon conviction.
The EEA explicitly identifies the statutory provisions that, if contravened, subject an offender to the regime of minimum fines and higher maximum fines upon conviction; however, it does not identify which provisions of regulations made under those statutes, if contravened, are subject to the new regime. Rather, the EEA amends nine environmental statutes to provide the necessary authority to identify such provisions by regulation. Regulations are thus required to identify offences in regulations under the Migratory Birds Convention Act, 1994 (MBCA) that will be subject to the regime of minimum fines and higher maximum fines established by the EEA.
Objectives
The objective of the Designation of Regulatory Provisions for Purposes of Enforcement (Migratory Birds Convention Act, 1994) Regulations (the Regulations) is to complete the fine regime introduced by the EEA by designating offences in regulations under the MBCA that are subject to the regime of minimum fines and higher maximum fines, in order to ensure that fines reflect the seriousness of designated offences. (see footnote 3)
Description
The Regulations designate offences in the Migratory Birds Regulations and the Migratory Bird Sanctuary Regulations, made under the MBCA, involving direct harm or risk of harm to the environment, or obstruction of authority, that subject an offender to the minimum fines and increased maximum fines introduced under the EEA upon conviction (see Table 1).
Table 1: Fines for designated offences (see footnote c)
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 footnote d) |
$25,000 |
$2,000,000 |
$75,000 |
$4,000,000 |
Corporations, ships of at least 7 500 tonnes deadweight, or other persons |
$100,000 |
$4,000,000 |
$500,000 |
$6,000,000 |
The contravention of a regulatory provision designated under the Regulations will not necessarily lead to a prosecution. Rather, the enforcement officer will 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 certain cases, a warning, compliance order, ticket or administrative monetary penalty may be appropriate. (see footnote 4) The fine regime described in Table 1 will not apply in these cases. However, in cases involving a serious level of non-compliance, prosecution may be the proper avenue for enforcement purposes. In such cases, the fine regime described in Table 1 will apply upon conviction.
“One-for-One” Rule
The “One-for-One” Rule does not apply to the Regulations, as there is no change in administrative costs incurred by businesses.
Small business lens
The small business lens does not apply to the Regulations, as there are no costs (or insignificant costs) incurred by small businesses.
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 interested parties 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 were republished in the Canada Gazette, Part I, on April 9, 2016, for a 60-day public comment period. A notification was sent by the Department to key parties, inviting them to submit written comments. During the 60-day public comment period, no concerns were expressed. The Department responded to two submissions that were received during the comment period from interested parties asking for additional information related to the proposed Regulations. The Department also received one submission expressing support for the intent and approach of the Regulations.
Rationale
The Regulations are necessary to complete the regime of minimum fines and higher maximum fines established by the EEA for the MBCA and will help ensure that court-imposed fines reflect the seriousness of offences under the MBCA. There are minimal impacts directly associated with the Regulations, however, as they neither amend existing obligations or requirements, nor impose new obligations or requirements on the public, or other interested parties. No additional administrative or compliance burden will be incurred by any industry or small business as a result of the 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 a strategic environmental assessment is not required. (see footnote 5)
Implementation, enforcement and service standards
The Regulations complete the regime of minimum fines and higher maximum fines for designated regulatory provisions under the MBCA. Given that the Regulations do not impose any new or additional obligation or requirement on the public, or other interested parties, 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 completed by the Regulations will 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.
The Regulations come into force on July 12, 2017, the same day that section 101 of the EEA, which provides the authority to the Governor in Council to adopt such regulations, is brought into force by Order in Council. If the Regulations are registered after July 12, 2017, they come into force on the day on which they are registered. In addition to bringing into force the authority to adopt the Regulations, the Order in Council also brings into force the statutory provisions that contain the updated fine regime for the MBCA.
Contacts
Executive Director
Legislative Governance Division
Legislative and Regulatory Affairs Directorate
Environmental Protection Branch
Department of the Environment
351 Saint-Joseph Boulevard
Gatineau, Quebec
K1A 0H3
Fax: 819-420-7391
Email: ec.legis.gov.ec@canada.ca
Matthew Watkinson
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
- Footnote a
S.C. 2009, c. 14, s. 101 - Footnote b
S.C. 1994, c. 22 - Footnote c
The fine amounts shown in this table are for first offences. The applicable fine doubles in each case for a second or subsequent offence. - Footnote d
Small revenue corporations are considered to be corporations with revenues under $5,000,000 in the 12 months preceding the offence in question. - 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 Regulations are one of the three regulations that complete the new fine regime established by the EEA. The Designation of Regulatory Provisions for Purposes of Enforcement (Canada Wildlife Act) Regulations are being finalized concurrently with the Regulations. The Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999) came into force in June 2012. - Footnote 4
The Environmental Violations Administrative Monetary Penalties Regulations, which implement an administrative monetary penalties regime pursuant to the Environmental Violations Administrative Monetary Penalties Act, are being finalized concurrently with the Regulations. - 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).