Summary of Environmental Law in Canada

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10 Protection of the Oceans and Coastal Areas

 

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Most marine environmental legislation in Canada is federal, due to the federal government's constitutional powers over navigation and shipping, and sea coast and inland fisheries. However, some provincial legislation, such as the British Columbia Waste Management Act, also applies to the marine environment.

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10.1 Coastal Management and Land Use Restrictions

 

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Canada has no formal coastal zone management policy. Coastal zone management is fragmented between 15 federal departments and agencies, which administer over 40 pieces of legislation relating to the marine environment.

The federal Navigable Waters Protection Act imposes restrictions on the construction of obstructions to navigation, such as wharves, aquaculture sites, pipelines, and bridges. This applies to both marine and fresh water. The Act requires proponents of projects of this type to obtain the approval of the federal Minister of Transport. The same applies for dumping of fill and excavation of materials from the waterbed, including artificial island construction and harbour dredging.

Provinces may impose land use restrictions affecting developments on the ocean foreshore. (In Canada, unlike in the U.S., the marine foreshore, the area between low tide and high tide, is usually Crown land not owned by upland private landowners.) For example, British Columbia's Land Act prohibits unauthorized construction on Crown land, including the ocean foreshore.

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10.2 Ocean Pollution

 

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Federal

The Canada Shipping Act, administered mainly by the Canadian Coast Guard, is the chief federal law controlling pollution from ships and other vessels. Regulations under this Act include the following:

The Oil Pollution Prevention Regulations concern both operational and accidental discharges, and call for "zero discharge" for operational spills or intentional discharges of any kind within Canadian waters. The Act provides for a Ship-source Oil Pollution Fund to compensate for oil spill costs and damage. The Canada Shipping Act now applies both to vessels and to oil handling facilities. Ships must maintain shipboard oil pollution emergency plans in accordance with International Maritime Organization requirements.

The federal Arctic Waters Pollution Prevention Act prohibits all oil discharges in Arctic waters or on land that is likely to flow into those waters. The Act establishes a 100-mile pollution control zone in Arctic waters. This law unilaterally and substantially extended Canadian territorial jurisdiction at the time the Act was passed in 1970.

The Canadian Environmental Protection Act, 1999 (CEPA 1999) prohibits ocean dumping without a permit, with a few exceptions concerning emergencies. The Act requires the government to notify the public of an application for a permit. This gives members of the public an opportunity to register objections or to request the federal Minister of Environment to appoint a board of review to examine the permit. If a permit is granted, the holder of the permit must pay a fee.

Another important federal marine pollution law is the Fisheries Act. Any work or undertaking that alters, disrupts, or destroys fish habitat is an offence under this Act. It also prohibits the deposit of any deleterious substance into "water frequented by fish." A deleterious substance is defined as one which would degrade or alter the quality of the water so as to render it harmful to fish or fish habitat.

Provinces and Territories

Pollution from land- and water-based sources is controlled by both federal and provincial legislation. Environmental protection legislation of the provinces and territories usually prohibits the discharge of waste into the environment, including marine water, without a permit. Provinces and territories also usually make provisions for environmental emergencies, including the spill or leakage of oil or a poisonous substance.

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10.3 Liability and Enforcement

 

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Federal

Under the Canada Shipping Act, the owner of the ship is liable for oil pollution damage from the ship. A person or ship guilty of an illegal pollution discharge is liable upon summary conviction for a fine of up to CND$250,000 and/or six months imprisonment. A party may also be found guilty of an indictable offence, which results in a fine not exceeding CND$1 million and imprisonment not exceeding three years, or both. In fixing a sentence, a court may look at a number of factors, including the harm or risk of harm caused by the offence, the estimate of the total cost of cleanup, the remedial action taken, whether the offence was deliberate or inadvertent, and any precautions taken by the offender to avoid the offence.

To enforce the Canada Shipping Act, pollution prevention officers have broad powers to detain vessels suspected of violating the Act. These officers may require ships' personnel within Canadian waters to provide information about the ship's condition, equipment, cargo, and fuel. They may collect oil samples from ships suspected of illegally discharging oil. Failure to follow the directions of a pollution prevention officer may result in a fine of up to CND$200,000.

A breach of CEPA 1999 provisions on ocean dumping may also result in prosecution. CEPA maximum penalties are stringent, though illegal ocean dumping has not historically been subject to large fines.

The Fisheries Act contains high penalties, with a maximum fine of CDN$300,000 and six months imprisonment for first offences, and fines up to CND$1 million and three years imprisonment for second or subsequent offences.

Provinces and Territories

Liability under provincial pollution control laws for ocean pollution may also result in fines, or in extreme cases, imprisonment.

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10.4 Asserted Jurisdiction Over Territorial Sea

 

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Canada enforces a 200 nautical mile fisheries jurisdictional limit under the Territorial Sea and Fishing Zones Act. Under the Canadian Environmental Protection Act, 1999 (CEPA 1999) , ocean dumping is controlled throughout the 200 nautical mile fishing zone jurisdiction.

The Coastal Fisheries Protection Act was amended in 1994 to give the Government of Canada the authority to regulate "straddling stocks" of fish that straddle the high seas and Canada's 200 nautical mile limits.

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2003