2003 Legislative Session: 4th Session, 37th Parliament
THIRD READING
The following electronic version is for informational
purposes only.
The printed version remains the official version.
Certified correct as passed Third Reading on the 21th day of
October, 2003
Ian D. Izard, Law Clerk
HONOURABLE JOYCE MURRAY
MINISTER OF WATER,
LAND AND AIR PROTECTION
Division 1 -- Conservation Officers
106 (1) The Conservation Officer Service is continued.
(2) The Conservation Officer Service consists of
(a) a person employed in the ministry who is appointed by the minister as the chief conservation officer, and
(b) the persons designated under subsection (3) (a).
(3) Subject to the direction of the minister, the chief conservation officer has general supervision over the Conservation Officer Service and may do all of the following:
(a) designate persons employed in the ministry, each of whom the chief conservation officer considers suitable, as conservation officers;
(b) designate persons, or a class of persons, employed in the ministry as auxiliary conservation officers;
(c) designate persons, or a class of persons, as special conservation officers;
(d) impose and confer on an auxiliary or a special conservation officer, or on a class of auxiliary or special conservation officers, any of the duties and powers given to a conservation officer under this Act;
(e) establish standards and procedures, including, but not limited to, establishing training and retraining standards and specifying operational procedures for the efficient discharge of duties and functions by the Conservation Officer Service and its members;
(f) specify equipment including, but not limited to, uniform apparel, vehicles and firearms to be used by members of the Conservation Officer Service;
(g) establish rules for the prevention of neglect and abuse by members of the Conservation Officer Service.
(4) An auxiliary or a special conservation officer may perform and exercise the duties and powers imposed and conferred on the officer under subsection (3) (d).
(5) Members of the Conservation Officer Service
(a) may exercise the powers and perform the duties of a conservation officer under this Act or any other enactment,
(b) are peace officers for the purpose of carrying out the powers and duties of a conservation officer under this Act or any other enactment, and
(c) have the immunities of, and are authorized to exercise the powers and perform the duties of, a peace officer exclusively for the purpose of carrying out the powers and duties of a conservation officer under this Act or another enactment.
107 (1) A conservation officer may exercise the powers and perform the duties of an officer under this Act and of a specified official under a prescribed enactment.
(2) On information on oath that there is reasonable cause to suspect that an offence under this Act or an enactment in respect of which a conservation officer has enforcement authority and has occurred or is about to occur, a justice, on being satisfied that an entry and a search is likely to provide evidence of the commission of an offence under that enactment, may issue a warrant authorizing a conservation officer
(a) to enter and search property specified in the warrant, and
(b) to seize and remove anything that the conservation officer has reasonable or probable grounds for believing may provide evidence of the commission of an offence under the enactment.
(3) A person required by an enactment in respect of which a conservation officer has enforcement authority to keep records must submit the records to a conservation officer for inspection on request.
(4) If a person refuses to submit records for inspection as required under this section, a justice, on being satisfied that an inspection of the records is necessary for the administration of the enactment that requires them to be kept, may issue a warrant authorizing a conservation officer to enter property specified in the warrant and to seize the records.
(5) A conservation officer who enters on property in accordance with a warrant issued under subsection (2) or (4) may take with him or her persons and equipment that may be necessary for the purpose of the entry.
(6) The forms referred to in section 21 of the Offence Act, and sections 22 to 24.2 of the Offence Act, apply to a search and anything seized under this section except that a thing ordered detained by a justice under section 24 (2) (a) of the Offence Act may be detained for up to one year before an order authorizing continued detention is required under section 24 (3) of that Act.
(7) Despite section 24.2 of the Offence Act, if the chief conservation officer considers anything seized
(a) to be a pollutant or an environmental hazard, it must not be returned, and the person claiming it is not entitled to compensation, or
(b) to be contaminated by a pollutant, it must not be returned unless it is decontaminated at the expense of the person entitled to it.
108 Despite any other enactment, a conservation officer performing duties under an enactment may
(a) enter any land, whether enclosed or not,
(b) enter any structure, including, if the conservation officer has a warrant authorizing the entry, a structure or a part of a structure used solely as a private residence,
but, at the request of the owner or occupier of the land or structure, the conservation officer must provide proof of identity.
109 (1) An officer may at any reasonable time enter on works or land and inspect any process, works or activity that
(a) produces or is capable of producing waste,
(b) causes or is capable of causing pollution, or
(c) is used for the storage, handling, treatment, destruction or disposal of waste,
but nothing in this subsection authorizes entry into any structure or part of a structure used solely as a private residence.
(2) If satisfied by evidence on oath that access to premises or a part of premises used solely as a private residence is necessary for the purposes of an inspection authorized under subsection (1), a justice may issue a warrant authorizing a person named in the warrant to enter into the premises or part of the premises and conduct an inspection or take other action as authorized in the warrant.
(3) The powers of an officer on entry under subsections (1) and (2) include the power to
(a) examine and take away records relating to
(i) the causing of pollution,
(ii) the production, treatment, storage, handling, transportation and discharge of waste, and
(iii) the characteristics of the waste produced, treated, stored, handled, transported or discharged, and
(b) carry out inspections, measurements and tests on the land or of any articles, substance or waste on it to ascertain the extent of the pollution or measure the quantity of waste produced, treated, stored, handled, transported or discharged and take away samples of the land, articles, substance or waste as the officer considers appropriate for the purpose, and section 24 of the Offence Act applies in respect of anything taken away.
(4) An officer who enters on works or land under subsection (1)
(a) may take with him or her persons and equipment that may be necessary for the purpose of the entry, and
(b) on request, must provide proof of identity to a person present at the works or land.
110 The minister and other persons the minister designates in writing have for the purposes of this Act the right to enter any property except a private residence.
111 (1) In this section:
"officer" includes a peace officer as defined in the Motor Vehicle Act;
"vehicle" includes a vehicle as defined in the Motor Vehicle Act, an all terrain vehicle as defined in the Motor Vehicle (All Terrain) Act, a rail vehicle as defined in the Transport of Dangerous Goods Act and a vessel.
(2) For the purpose of ensuring compliance with this Act or the regulations made under this Act or with a permit, order, waste management plan, licence or approval issued or given under this Act, an officer may, at any reasonable time,
(a) request a person to open and permit the inspection of, or open and inspect, any vehicle and any container or package carried by the vehicle, if the officer believes, on reasonable and probable grounds, that the vehicle, container or package is being used to handle or transport hazardous waste, and
(b) inspect and test anything carried by the vehicle and the contents of any package or container carried by the vehicle.
(3) If, as a result of an inspection or a test carried out under this section, it appears to the officer making the inspection or test that the vehicle was transporting hazardous waste in contravention of this Act or the regulations or any licence, permit, order, waste management plan or approval issued or given under this Act, the officer may require the driver to drive the vehicle to a place the officer specifies, and the officer may do one or more of the following:
(a) order one or more of the following persons to deal with the hazardous waste in the manner the officer considers necessary:
(i) the owner of hazardous waste found on or in the vehicle;
(ii) the person operating the vehicle or the owner of the vehicle;
(b) seize in accordance with the regulations, and dispose of
(i) any hazardous waste found on or in vehicle, and
(ii) any package or container holding the hazardous waste;
(c) detain the vehicle for any period that the officer considers necessary in order to exercise his or her powers under paragraphs (a) and (b).
(4) The owner of the hazardous waste, package or container and the owner of the vehicle that was transporting the hazardous waste, package or container are jointly and separately liable to the government for the cost of disposing of the hazardous waste, package or container under subsection (3) (b), and that cost is recoverable from them by the government as a simple contract debt.
112 (1) If in the course of an inspection under section 109 [entry on property] or 111 [inspection of vehicles] an officer considers that a person is contravening this Act or the regulations, the officer may
(a) seize anything that the officer considers should be seized, and
(b) order the person to do anything the officer considers necessary
to stop the contravention or prevent another contravention.
(2) Section 21 (6) of the Offence Act applies in respect of a seizure under a warrant under section 109 (2) [entry on property] of this Act and section 23 (4) of the Offence Act applies in respect of any other seizure under this Act, and for the purposes of section 23 (4) of the Offence Act, an officer is deemed to be a peace officer.
(3) Subsection (2) does not apply in relation to hazardous waste ordered dealt with under section 111 (3) (a) [inspection of vehicles] or disposed of under section 111 (3) (b).
113 (1) If the minister considers it necessary, the minister may order an inquiry with respect to the environment and for that purpose the minister or a person appointed by the minister to hold the inquiry has the powers, protection and privileges of a commissioner under sections 12, 15 and 16 of the Inquiry Act.
(2) A person appointed under subsection (1) must conduct the inquiry in accordance with terms of reference and any procedural guidelines specified by the minister for the inquiry.
114 (1) If a person by carrying on any activity or operation contravenes section 6 [waste disposal], 9 [hazardous waste storage and disposal] or 10 [transportation of hazardous waste], or a suspension or cancellation made under section 18 [suspension or cancellation of permits and approvals], or an order made under Part 4 [Contaminated Site Remediation], the activity or operation may be restrained in a proceeding brought by the minister in the Supreme Court.
(2) The making of an order under subsection (1) in relation to a matter does not interfere with the imposition of a penalty in respect of an offence under section 6 [waste disposal], 9 [hazardous waste storage and disposal] or 10 [transportation of hazardous waste], or a suspension or cancellation made under section 18 [suspension or cancellation of permits and approvals] or an order made under Part 4 [Contaminated Site Remediation].
Division 3 -- Administrative Penalties
115 (1) Subject to the regulations, if a director is satisfied on a balance of probabilities that a person has
(a) contravened a prescribed provision of this Act or the regulations,
(b) failed to comply with an order under this Act or the regulations, or
(c) failed to comply with a requirement of a permit or approval issued or given under this Act,
the director may serve the person with a determination requiring the person to pay an administrative penalty in the amount specified in the determination.
(2) A determination under subsection (1) must be in the prescribed form and contain the prescribed information.
(3) A penalty imposed under this section must be paid within the prescribed time.
(4) Before the date an administrative penalty under this section is due, the director may, subject to the regulations, enter into an agreement with the person who is liable for the penalty.
(5) An agreement under subsection (4) may provide, in accordance with the regulations, for the reduction or cancellation of the penalty subject to the terms and conditions the director considers necessary or desirable.
(6) An agreement under subsection (4) must specify the time for performing the terms and conditions and if the person fails to perform those terms and conditions by the date specified, the penalty specified in the notice under subsection (1) is due and payable on that date.
(7) Neither a director's decision whether to enter into an agreement nor the terms and conditions of an agreement under subsection (4) may be appealed under Division 2 [Appeals from Decisions under this Act] of Part 8.
(8) If a director issues an administrative penalty notice to a person in respect of a contravention or failure referred to in subsection (1), a prosecution for an offence under this Act in respect of the same contravention or failure may not be brought against the person.
(9) If a corporation contravenes the Act or regulation or fails to comply with an order, permit or approval as described under subsection (1), an employee, officer, director or agent of the corporation who authorized, permitted or acquiesced in the contravention or failure is also liable under this section even though the corporation is liable for or pays an administrative penalty.
116 A person who has been charged with an offence under this Act may not be subject to an administrative penalty in respect of the circumstances that gave rise to the charge.
117 (1) Subject to a decision of the appeal board cancelling a determination under section 115 (1) [administrative penalties], an administrative penalty under this Act may be recovered as a debt due to the government.
(2) If a person fails to pay an administrative penalty as required under section 115 [administrative penalties], the officer who made the determination may file a certificate in a court that has jurisdiction and, upon filing, the certificate has the same force and effect, and all proceedings may be taken on it, as if it were a judgment of the court with which it is filed.
(3) A certificate under subsection (2) may be in the prescribed form, must be signed by the officer and must contain
(a) the name of the person who is liable for the penalty,
(b) the contravention or failure in relation to which the penalty is imposed, and
(c) the amount of the penalty.
Division 4 -- Economic Instruments
118 (1) The Lieutenant Governor in Council, by regulation, may limit the circumstances in which prescribed words, names, phrases, symbols, labels, marks or packaging may be used in relation to products or services to indicate that the product or service
(a) was produced or provided using prescribed environmental practices, or
(b) meets prescribed environmental quality or production standards.
(2) A regulation referred to in subsection (1) may adopt standards developed by a prescribed person for use of the prescribed word, name, phrase, symbol, label, mark or packaging.
Division 5 -- Regulations for Part 9
119 (1) Without limiting section 138 (1) [general authority to make regulations], the Lieutenant Governor in Council may make the following regulations:
(a) for the purposes of providing economic incentives to promote environmentally responsible behaviour,
(i) respecting the variation of fees payable by a person under this Act, including without limitation,
(A) authorizing a director to vary fees,
(B) establishing the criteria the person must satisfy to be eligible for or subject to a variation, and
(C) limiting the amount of a variation authorized by the director,
(ii) respecting agreements under which the requirements of this Act or the regulations may be varied, including by adding to, restricting the application of or eliminating requirements, in relation to that person for the term of the agreement, including without limitation
(A) authorizing the minister to enter into agreements,
(B) establishing the criteria the person must satisfy to be eligible for an agreement,
(C) specifying the provisions of the Act or regulations that may be varied under an agreement, and
(D) requiring public notification to persons affected by an agreement, and
(iii) respecting the establishment of a program of discharge monitoring, registration and trading, including offsets or credits;
(b) for the purposes of section 115 [administrative penalties],
(i) prescribing procedures for making a determination including, but not limited to,
(A) prescribing the form and content of an administrative penalty notice,
(B) prescribing contraventions in relation to which an administrative penalty notice may be sent and a determination made, and
(C) establishing procedures for providing a person on whom a notice of an administrative penalty has been served with an opportunity to make representations which need not entail an oral hearing,
(ii) prescribing a schedule of monetary penalties that may be imposed and the matters that must be considered by an officer in establishing a penalty in a particular case,
(iii) authorizing administrative penalties to be imposed on a daily basis for continuing contraventions or failures,
(iv) prescribing time limits for paying administrative penalties,
(v) prescribing, in relation to a contravention or failure described in section 115 (1), whether a notice of an administrative penalty must be cancelled if the person on whom it was served demonstrates to the satisfaction of a director that the person exercised due diligence to prevent the specified contravention or failure,
(vi) respecting agreements, including prescribing terms and conditions that must be included, under section 115 (4),
(vii) prescribing a limitation period for imposing an administrative penalty and evidentiary matters in relation to that period,
(viii) prescribing for manners of paying a monetary penalty,
(ix) prescribing the consequences of failing to pay an administrative penalty which may include, but are not limited to, imposing additional penalties,
(x) providing for the publication of an officer's determination to impose an administrative penalty, and
(xi) prescribing the form of a certificate under section 117 [recovery of administrative penalties];
(c) prescribing enactments and officials for the purpose of section 107 (1) [enforcement powers of the Conservation Officer Service].
(2) Section 139 [regulations -- general rules] applies for the purpose of making regulations under this section.
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