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GOOD GOVERNANCE

Today, we will discuss: • what good governance means in the

environmental enforcement context;• creative enforcement measures which contribute

to good governance; and• new legislation which contributes to good

governance particularly in Canada’s exclusive economic zone.

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GOOD GOVERNANCE

The OECD identifies the following elements for good governance:

• openness;• transparency and accountability;• fairness and equity in dealings with citizens;• efficient and effective services;• clear and transparent laws and regulations; • consistency and coherence in policy formation; • high standards of ethical behaviour; and• respect for the rule of law.

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GOOD GOVERNANCE The European Commission describes the rule of law as having

the following characteristics:• a legislature that enacts laws that respect the constitution and

human rights;• an independent judiciary; • effective, independent and accessible legal services;• a legal system guaranteeing equality before the law; • a prison system respecting the human person; • a police force at the service of the law;• an effective executive that is capable of enforcing the law and

establishing the social and economic conditions necessary for life in society, and that is itself subject to the law; and

• a military that operates under civilian control within the limits of the constitution.

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GOOD GOVERNANCECompliance is an indivisible part of the rule of law. The eminent jurist Lon Fuller described eight essential elements of the rule of law:

that law be general in its application; that it be public; that it operate prospectively; that it have reasonable clarity; that it be internally consistent; that it be practicable to comply with, that is, that there can be a

genuine congruence between the ought of the law and the can; that it be relatively stable; and that there exist a congruency between the word of law and its

enforcement.

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GOOD GOVERNANCE

Without compliance, the rule of law has no meaning. The importance of compliance, rule of law and good governance is nowhere more important than in the field of environment and sustainable development.

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GOOD GOVERNANCE

As many of you are aware, Environment Canada has three compliance and enforcement policies:

• the CEPA 1999 Compliance and Enforcement Policy;

• the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act; and,

• the Compliance and Enforcement Policy for Wildlife Legislation.

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GOOD GOVERNANCE

These policies state that compliance with these statutes and their regulations is mandatory. They also set out for the regulated community how the law will be enforced. They also set out the enforcement responses and the criteria for when these responses will be used by the regulator.

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GOOD GOVERNANCE

Within this framework, Environment Canada endeavours to enforce the law.

Effective enforcement within this framework enhances good governance.

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BILL C-15

Now, I wish to discuss Bill C-15 which became law on June 28th, 2005. This new law was enacted to strengthen the rule of law in protecting migratory birds and in protecting the environment particularly in the 200 mile exclusive economic zone of Canada. This legislation applies to all of Canada and the EEZ.

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BILL C-15

This enactment amends:

• the Migratory Birds Convention Act, 1994 and,

• the Canadian Environmental Protection Act, 1999.

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BILL C-15

This enactment amends the Migratory Birds Convention Act, 1994 to

• (a) state that that Act applies in the exclusive economic zone of Canada;

• (b) protect migratory birds from the effects caused by deposits of harmful substances, such as oil, in the exclusive economic zone of Canada;

• (c) state that that Act applies to vessels and their owners and operators;

• (d) subject masters, chief engineers, owners and operators of vessels and directors and officers of corporations to a duty of care to ensure compliance with that Act and its regulations;

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BILL C-15

• (e) expand the enforcement powers to include orders to direct and detain vessels found to be in contravention of that Act or its regulations;

• (f) expand the jurisdiction of Canadian courts to include the exclusive economic zone of Canada;

• (g) increase penalties; and• (h) permit courts to impose additional punishments

in the form of orders covering matters such as environmental audits, community service and the creation of scholarships for students enrolled in environmental studies.

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BILL C-15

It is important to note that the amendments to the Migratory Birds Convention Act, 1994 do not just focus on pollution from ships. These amendments also apply to various activities within Canada.

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BILL C-15

Prohibitions

5.1 (1) No person or vessel shall deposit a substance that is harmful to migratory birds, or permit such a substance to be deposited, in waters or an area frequented by migratory birds or in a place from which the substance may enter such waters or such an area.

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BILL C-15

Prohibitions

(2) No person or vessel shall deposit a substance or permit a substance to be deposited in any place if the substance, in combination with one or more substances, results in a substance — in waters or an area frequented by migratory birds or in a place from which it may enter such waters or such an area — that is harmful to migratory birds.

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BILL C-15

Obligations

5.4 Every master, chief engineer, owner and operator of a vessel — and, if the owner or operator is a corporation, every director and officer of the corporation who is in a position to direct or influence its policies or activities relating to conduct prohibited by section 5.1 — shall take all reasonable care to ensure that the vessel and all persons on board the vessel comply with section 5.1.

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BILL C-15

Obligations of Directors and Officers

5.5 Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with this Act and the regulations.

It is important to note that this obligation applies to all of the MBCA, 1994.

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BILL C-15

Statutory Due Diligence Defence(1.8) A person or vessel that establishes that

they exercised due diligence to prevent the commission of an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d) or section 5.3, shall not be found guilty of the offence. The exceptions pertain to mens rea offences.

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BILL C-15

Penalties

s. 13 –significant fines or jail terms

s.13(4.1) - legislated sentencing considerations

s.13(5) – additional fines

s.14 – forfeiture

s.16 – discretionary court orders

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BILL C-15

Application of Fines(6) All fines received by the Receiver

General in respect of the commission of an offence under this Act shall be received for the special purpose of protecting and conserving migratory birds or the environment and credited to the Environmental Damages Fund, an account in the accounts of Canada.

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BILL C-15

This enactment also amends the Canadian Environmental Protection Act, 1999 to

• (a) protect the marine environment from the wrongful activities of ships as well as persons;

• (b) include prohibitions concerning the disposal and incineration of substances at sea by ships;

• (c) include regulation-making authority to deal with disposals of substances during the normal operations of ships, aircrafts, platforms and other structures;

• (d) expand the enforcement powers to include orders to direct ships found to be in contravention of that Act or its regulations;

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BILL C-15

• (e) subject owners of ships and directors and officers of corporations that own ships to a duty of care to ensure that ships comply with the provisions of that Act and its regulations concerning disposal at sea and with orders and directions made under that Act; and

• (f) expand the jurisdiction of Canadian courts to include the exclusive economic zone of Canada.

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BILL C-15

Amendments to CEPA, 1999These amendments provide:- A ship is now a legal person and may be

charged;- The prohibitions and obligations under Part 7,

Division 3, apply to ships and to persons;- Explicitly states that the enforcement powers

and the jurisdiction of courts to try offences apply to the EEZ;

- Clarifies the language to make it clear that such offences are strict liability offences;