Next to federal taxation and trade legislation,
'Act') is probably the federal legislation of most concern
to the BC forest industry. And for good reason. The Act
contemplates maximum penalties for a contravention of up to $1
million, three years imprisonment, or both. A court is also able to
impose an additional fine to remove any monetary benefit received
due to noncompliance with the Act. If a contravention of the Act
continues for more than one day, a separate offence occurs each
day. And, most chillingly, if a company commits an offence under
the Act, then any officer, director or agent of the company who
directed, authorized, assented to, acquiesced in or participated in
the commission of the offence is personally guilty of the offence
and liable to punishment as provided for in the Act.
Recently, the federal Parliament enacted two statutes —
the Jobs and Growth Act, 2012 (Bill C-45), and the
Jobs, Growth and Long-term Prosperity Act (Bill C-38)
— that included amendments to the Act (the
'Amendments'). While the Amendments are largely focused on
clarification, there are some substantive changes as well.
The Amendments have revised section 35 of the Act with respect
to the alteration, disruption or destruction of fish habitat,
probably the most well-known provision of the Act within the BC
forest sector. Previously, section 35(1) prohibited any
"work" or "undertaking" that resulted in
harmful alteration, disruption or destruction of fish habitat. As
amended, section 35(1) now also prohibits any "activity"
that results in harmful alteration, disruption or destruction of
fish habitat. The addition of "activity" as a category of
prohibited acts serves as a catch-all that may significantly
broaden the application of section 35(1).
The Amendments have also simplified the limitation period for
the government to pursue a summary conviction under the Act. The
Crown may elect to pursue a conviction under the Act
"summarily" or by way of "indictment." In
general terms, summary proceedings usually relate to less serious
matters that expose the accused to a smaller penalty. Previously,
the limitation on the Crown's ability to proceed summarily
under the Act required the Crown to commence proceedings within two
years of when "the Minister" became aware of the subject
matter of the proceedings. Of course, this inevitably led to
uncertainty as to when, exactly, "the Minister" became
aware of something. The Amendments have done away with this
uncertainty, and now the limitation period is simply five years
measured from the date of the offence.
Some of the Amendments relate to the shared nature of the
constitutional jurisdiction that the provincial and federal
governments have with respect to environmental matters. The federal
government now has the legislative authority under the Act to enter
into agreements with the provinces to facilitate cooperation and
joint action in relation to areas of common interest to further the
objectives of the Act. This might include, for example, cooperation
and joint action among the federal government and the provinces to
control the spread of aquatic invasive species.
Through these agreements, the Amendments also have the potential
to reduce duplicative regulation in the forest sector. If a
provision of the Act is the equivalent of a provincial regulatory
provision with respect to a given subject matter, the federal
government is now authorised under the Act to suspend the federal
provision with respect to that subject matter in the province
pursuant to an agreement under the Act. So, for example, if the
federal government agreed that the protection of fish and fish
habitat under section 57 of the Forest Planning and Practices
Regulation was equivalent to the prohibition against
alteration, disruption or destruction of fish habitat under section
35 of the Act, BC and the federal government could enter into an
agreement whereby section 35 of the Act would not apply in BC. Of
course, the Act would require that the agreement include provisions
that would allow the federal government to effectively monitor the
enforcement of the provincial legislation. But if such an agreement
were entered into it would remove the potential for multiple
enforcement actions in respect of different federal and provincial
regulatory provisions that do the same thing.
Originally published in the The Legal Perspective
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