LS-396E
BILL C-10: AN ACT RESPECTING
THE NATIONAL
MARINE CONSERVATION AREAS OF CANADA
Prepared by:
Mollie Dunsmuir
Law and Government Division
28 March 2001
LEGISLATIVE HISTORY OF BILL
C-10
HOUSE
OF COMMONS
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SENATE
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Bill
Stage |
Date |
Bill
Stage |
Date |
First
Reading: |
20 February
2001
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First
Reading: |
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Second
Reading: |
16 May 2001
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Second
Reading: |
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Committee
Report: |
1 November 2001
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Committee
Report: |
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Report
Stage: |
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Report
Stage: |
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Third
Reading: |
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Third
Reading: |
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Royal Assent:
Statutes of Canada
N.B. Any substantive changes in this Legislative
Summary which have been made since the preceding issue are indicated
in bold print.
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TABLE
OF CONTENTS
BACKGROUND
DESCRIPTION
AND ANALYSIS
A. Preamble
B. Short
Title, Definitions, etc.
C. Marine
Conservation Areas
D. Administration
E. Prohibitions
F. Regulations
G. Enforcement
H. Offences
and Punishment
I. Mitigation
of Environmental Damage
J. Consequential
Amendments
COMMENTARY
BILL C-10: AN ACT
RESPECTING THE NATIONAL
MARINE CONSERVATION AREAS OF CANADA*
BACKGROUND
National marine conservation
areas are intended to conserve representative examples of Canadas
29 marine environments in coastal zones and the Great Lakes. Policy
direction for the program was first provided in 1986 with the release
of the National Marine Parks Policy. In 1994, Parks Canada
released and tabled in Parliament a document entitled Guiding Principles
and Operational Policies.(1)
Parks Canada quickly followed this in 1995 with the release of the National
Marine Conservation Areas System Plan, Sea to Sea to Sea, which
summarized the characteristics of the 29 marine areas identified.
In 1996, Parks Canada released a discussion paper entitled Charting
the Course Towards a Marine Conservation Program.(2)
The change of the name marine
park to marine conservation area reflects a realization
that national marine conservation areas are not simply parks in
the water. Marine conservation areas involve a partnership
between several federal departments. Under the Oceans Act,
the Minister of Fisheries and Oceans can establish marine protected
areas. Additionally, Environment Canada can establish national
wildlife areas or marine wildlife areas under the Canada
Wildlife Act, as well as migratory bird sanctuaries under
the Migratory Birds Convention Act.
Generally speaking, however,
Fisheries and Oceans Canada and Environment Canada focus on addressing
a specific need to resolve particular resource management problems, whereas
the Parks Canada program is intended to provide a representative sampling
of the various marine environments found in Canadas oceans and the
Great Lakes. Unlike national parks, whose resources are fully protected,
marine conservation areas are managed for sustainable use and there is
a focus on recreation, tourism, education and research.
Bill C-10 allows Parks Canada
to implement the national marine conservation areas strategy. Currently,
federal-provincial agreements are either in place or under consideration
for four parks representing 5 of the 29 marine regions: Gwaii Haanas (Queen
Charlotte Shelf and the Hecate Strait marine regions); Fathom Five (Georgian
Bay region); Lake Superior region (proposed); and Southern Strait of Georgia
(proposed, Strait of Georgia region). The Saguenay-St. Lawrence
Marine Park represents a sixth region (St. Lawrence Estuary), but is not
affected by the passage of Bill C-10 because the park is governed by separate
legislation passed in 1997.
Bill C-48, the predecessor
bill to Bill C-10, was introduced in the 1st session of the
36th Parliament on 11 June 1998. It was referred to the
Standing House of Commons Committee on Canadian Heritage, which heard
evidence in February and March 1999. When the Committee presented
its Seventh Report (the 1999 amendments) to the House of Commons,
a number of significant amendments were made. Bill C-48 died
on the Order Paper when the 1st session of Parliament
was prorogued, but reappeared as Bill C-8 in the 2nd session
of the 36th Parliament. Bill C-8 was deemed to have
been read a second time, referred to a committee, and reported with amendments.
Bill C-8, in its turn, died on the Order Paper when the 36th Parliament
was dissolved in October 2000. Bill C-10, introduced on 20 February
2001, incorporates the 1999 amendments, as well as the amendments to Bill
C-8 at report stage.
DESCRIPTION
AND ANALYSIS
A. Preamble
The Preamble of Bill C-10
refers to a number of principles, including:
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the importance of natural,
self-regulating marine ecosystems for the maintenance of biological
diversity; and
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the Government of Canada
is committed to adopting the precautionary principle in the conservation
and management of the marine environment so that, where there are
threats of environmental damage, preventive measures are not postponed
because of lack of scientific certainty.
The Preamble also notes
the need to:
a. establish
a system of marine conservation areas representative of Canadas
oceans and the Great Lakes of a sufficient size to maintain healthy
marine ecosystems;
b. contribute
to the establishment of an international network of such protected marine
areas;
c. consider
implications for ecosystems when planning and managing marine conservation
areas;
d. provide
opportunities for Canadians and others to appreciate and enjoy Canadas
natural and cultural marine heritage;
e. recognize
that the marine environment is fundamental to the social, cultural and
economic well-being of people living in coastal communities;
f. provide
opportunities for the ecologically sustainable use of marine resources
for the lasting benefit of coastal communities;
g. promote
educational, research and monitoring opportunities within the marine
environment; and
h. involve
federal and provincial bodies, affected aboriginal and coastal communities,
and bodies established under land claims agreements in the effort to
establish and manage these areas.
Paragraphs (e), (g) and
(h) were added by the 1999 amendments.
B. Short
Title, Definitions, etc.
Clause 1 of the bill provides
that the short title is the Canada National Marine Conservation Areas
Act. This is a change from Bill C-48 and C-8, which would both have
been referred to as the Marine Conservation Areas Act.
Clause 2(1) contains the
definition section. The Minister is the Minister of
Canadian Heritage.
Disposal and
waste or other matter are defined in the same manner as in
the Canadian Environmental Protection Act, 1999, while fishing
is defined in the same manner as in the Fisheries Act. This
would presumably facilitate efforts to coordinate the management of national
marine conservation areas.
Marine conservation
officer and enforcement officer are persons designated
under clauses 18 and 19 of Bill C-10, and these are described below in
section G. Superintendents are appointed under the Parks
Canada Agencies Act. A national marine conservation area
is listed in Schedule 1, and a national marine conservation area reserve
is listed in Schedule 2. Public lands are lands that
belong to the Government of Canada or that the government has the power
to dispose of.
One of the most important
definitions is probably that of ecosystem, because clause
9(3) provides that the primary considerations in the development
and modification of a management plan for any marine conservation area
shall be principles of ecosystem management and the precautionary
principle. This definition is the same as in the Canadian
Environmental Protection Act, 1999:
ecosystem
means a dynamic complex of animal, plant and microorganism communities
and their non-living environment interacting as a functional unit.
Clause 2(2) was added by
the 1999 amendments, and states that nothing in the Act shall be construed
as affecting existing aboriginal or treaty rights guaranteed by section
35 of the Constitution Act, 1982.
Clause 2(3), which is new
to Bill C-10, clarifies that the establishment of a marine conservation
area within the exclusive economic zone does not constitute any new claim
by Canada as to rights, jurisdiction or duties within that area.
Clause 3 confirms that the
Act would be binding on both Canada and the provinces.
C. Marine
Conservation Areas
Clause 4(1) defines the
purpose of establishing marine conservation areas as protecting
and conserving representative marine areas for the benefit, education
and enjoyment of the people of Canada and the world. Clause
4(2) explains that reserves for marine conservation areas
are established when part of such an area is subject to a claim by aboriginal
people that has been accepted by the federal government for negotiation
as a comprehensive land claim. Clause 30 specifies that the Act
applies to a reserve as if it were a marine conservation area.
Clause 4(3) requires areas
and reserves to be managed and used in a sustainable manner
to meet the needs of current and future generations without compromising
the associated ecosystems. Clause 4(4), which was added by the 1999
amendments, requires the marine conservation areas to be divided into
zones, including zones that foster ecologically sustainable use of marine
resources and zones that fully protect special features and fragile
ecosystems.
Clause 5(1) provides that,
subject to the process set out in clause 7, the Governor in Council could
create or enlarge marine conservation areas by adding the name and a description,
or an altered description, to Schedule 1 of the Act. Clause 5(3)
prohibits any changes to Schedule 1 for the purpose of reducing the size
of a marine conservation area without legislative authority. The
power to create national marine conservation areas applies to internal
waters, the territorial sea or exclusive economic zone, and any coastal
lands or islands within Canada. Clause 5(2) limits the additions
or amendments to Schedule 1 to situations in which Canadas ability
to create a marine conservation area is unencumbered by provincial claims
or unfulfilled land claim agreements.
Clause 6 deals with marine
conservation area reserves, subject to the process laid out in clause
7. When part of the marine conservation area is the subject of a
comprehensive land claim, the name and description of the reserve is added
to Schedule 2. When the land claim is settled, the Governor in Council
could, depending upon the settlement, remove or alter the description
of the reserve in Schedule 2 and add the name and description of the area
to Schedule 1.
Clause 7 requires that a
proposed amendment to Schedule 1 or 2 that either created or enlarged
a marine conservation area or a reserve be tabled with each House of Parliament,
together with documentation on the proposed area or reserve including
information on consultations and an interim management plan. The
proposed amendment would be referred to a standing committee of each House,
which would have the option of reporting within 20 sitting days.
If either standing committee reported to the full House that it disapproved
of the amendment, a motion to concur in the report would be put to the
House and debated for not more than three hours.
If either House passed a
motion concurring in a report disapproving the proposed amendment to Schedule
1, the proposed amendment could not be made. If no such motion
were proposed in either House after 21 sitting days, the proposed amendment
to Schedule 1 could be made. Sitting day is not defined,
so the Senate standing committee presumably would have 20 Senate
sitting days to report, which might considerably lengthen the anticipated
time frame.
Because Bill C-10 does not
create any national marine conservation areas or reserves, Schedules 1
and 2 are currently blank. Once Bill C-10 becomes law, existing
marine conservation areas will be added to the schedules.
D. Administration
Clause 8 provides that the
Minister of Canadian Heritage is responsible for marine conservation areas
in relation to any matters not assigned by legislation to another Minister.
The Minister is given a broad mandate to achieve the purposes of the Act,
including conducting scientific research and studies based on traditional
ecological knowledge and traditional aboriginal ecological knowledge in
relation to marine conservation areas. The Minister can also enter
into agreements with federal and provincial ministers and agencies, local
and aboriginal governments, bodies established under land claims agreements,
and non-governmental organizations.
Clause 9 requires the Minister
to prepare a management plan for a marine conservation area within five
years of its establishment, and after extensive consultation. This
management plan, which would be tabled in both Houses of Parliament, would
include provision for ecosystem protection, human use and zoning.
The Minister must review such management plans at least every five years.
Clause 9(3) states that the two primary considerations in developing a
management plan must be: (1) principles of ecosystem management;
and (2) the precautionary principle. Clause 9 also provides that
the provisions of a management plan to do with fishing, aquaculture and
marine navigation and safety are subject to an agreement between the Minister
of Canadian Heritage and the Minister of Fisheries and Oceans. Similarly,
any plan including lands that are the subject of an aboriginal land claims
agreement must be consistent with the agreement.
Clauses 10 and 11 deal with
consultation and advisory committees. Clause 10(1) requires the
Minister to consult with a broad range of named parties, including:
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relevant federal and
provincial ministers and agencies;
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affected coastal communities;
and
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aboriginal organizations
and bodies established under land claims agreements.
The Minister can also consult
with anyone else he or she considers appropriate. At least every
two years, the Minister is required to table in each House of Parliament
a report on the state of national marine conservation areas, and the progress
towards completing a representative system of such areas.
Clause 11 requires the Minister
to establish a management advisory committee for each marine conservation
area, after consultation with such other governmental bodies as the Minister
considers appropriate. Clause 11(2) allows the Minister to establish
other advisory committees on marine conservation area policy or administration.
E. Prohibitions
Clause 12 prohibits the
disposal of public lands, or the use or occupation of such land, except
as permitted by the Act or the regulations.
Clause 13 implements a complete
ban on exploration or exploitation of hydrocarbons, minerals, aggregates
or any other inorganic matter within a marine conservation area.
Clause 14 prohibits the
disposal of any substance into the waters of a marine conservation area
unless it was authorized by a superintendent pursuant to this bill, or
under the provisions of the Canadian Environmental Protection Act,
1999 (CEPA). As well, the Minister of Canadian Heritage
has to concur in the issuance of any such permit under CEPA.
The provisions of CEPA that allow dumping to take place without
a permit where necessary to avert a danger to human life or, in certain
circumstances, to transport facilities would also apply to marine conservation
areas.
Clause 15 allows the superintendent
of a marine conservation area to issue, amend, suspend or revoke permits
authorizing activities in the marine conservation area, to the extent
that such activities are authorized by the regulations. Consistent
with the 1999 amendments, clause 15(2) clarifies that a permit under
the Fisheries Act is deemed to also be a permit under this Act,
subject to regulations made on the recommendation of both the Minister
of Canadian Heritage and the Minister of Fisheries and Oceans. Clause
15(3) clarifies that the superintendent of a marine conservation area
is not permitted to suspend or revoke a license issued under the Fisheries
Act.
F. Regulations
Clause 16 permits the Governor
in Council to make regulations in a broad range of areas for the control
and management of marine conservation areas, provided the regulations
are consistent with international law. This confirms that the Act
is not designed to give Canada any new rights in offshore waters, but
only to regulate existing rights. The regulations could deal with
the following areas:
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the protection of ecosystems
as well as cultural, historical and archaeological resources;
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the management of renewable
resource harvesting activities, such as fishing or aquaculture;
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zoning within marine
conservation areas;
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regulating or prohibiting
activities, or the use of facilities, in marine conservation areas;
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permits issued pursuant
to clause 15, and fees for the use of resources, facilities and services;
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regulating leases and
other legal instruments with respect to public lands in marine conservation
areas;
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public safety;
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aircraft which might
cause a danger or disturbance to wildlife and wildlife habitat;
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the control of scientific
research activities;
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disposal in marine conservation
areas not covered by the Canadian Environmental Protection Act,
1999 provisions on disposal; and
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any of the powers conferred
on the Governor in Council by the Canada National Parks Act,
to the extent that they apply to marine conservation areas.
Certain regulations
that involve fisheries management and conservation; that restrict or prohibit
fishing, aquaculture or marine navigation; or that affect marine safety
may only be made on the recommendation of both the Minister of
Canadian Heritage and the Minister of Fisheries and Oceans. Similarly,
regulations that restrict or prohibit marine navigation, or activities
related to marine safety that could be made under the Canada Shipping
Act or the Arctic Waters Pollution Prevention Act, and regulations
affecting air navigation, can only be made on the recommendation of both
the Minister of Canadian Heritage and the Minister of Transport.
Regulations made on the
recommendation of two Ministers would prevail over regulations made under
the Fisheries Act, the Coastal Fisheries Protection Act,
the Canada Shipping Act, the Arctic Waters Pollution Prevention
Act, the Navigable Waters Protection Act, and the Aeronautics
Act.
Clause 16(6) allows the
Governor in Council to make regulations regarding activities that may
be carried on by aboriginal people in a marine conservation area by virtue
of their existing aboriginal or treaty rights as recognized and affirmed
by section 35 of the Constitution Act, 1982.
Clause 17 allows the Governor
in Council to exempt from the regulations a ship or aircraft operated
by Canada, a province or a foreign state if this were necessary in the
interests of Canadian sovereignty or security. An exemption is also
allowed for the conduct of any maritime activity consistent with the purposes
of the Act.
G. Enforcement
Clauses 18 and 19 deal with
the designation of marine conservation area wardens and enforcement officers
for the purposes of the Act. Wardens are persons appointed under
the Parks Canada Agency Act, and have the power to enforce the
Act and its regulations in any part of Canada or the exclusive economic
zone. Enforcement officers can be employees of the federal, provincial,
municipal or local authorities whose duties include law enforcement and
would have the power to enforce specified provisions of the Act or regulations
in specified marine conservation areas. Both wardens and enforcement
officers are peace officers within the meaning of the Criminal Code.
Clause 20 provides for wardens
and enforcement officers to take an oath and be provided with a certificate
of designation. For enforcement officers, this includes a description
of the provisions and regulations that they have the power to enforce,
and the area within which their powers apply. They also have the
right to cross over or enter private property.
Clause 21 allows a warden
or enforcement officer to arrest without a warrant any person found committing
an offence under the Act, or any person for whom there are reasonable
grounds to believe has committed or is about to commit such an offence.
A warden can also arrest a person committing an offence under another
Act, unless it takes place in the portion of a marine conservation area
that is situated within the exclusive economic zone. These powers
are to be exercised in accordance with, and subject to, the Criminal
Code.
Clause 22 outlines the search
and seizure provisions that are available to a warden or conservation
officer where a justice of the peace has issued a warrant. Clause
22(3) provides that a warden or enforcement officer may engage in search
and seizure activities without a warrant if the conditions for obtaining
a warrant exist but by reason of exigent circumstances it would not be
practical to obtain one. The bill does not define the term
exigent circumstances, but in section 8(2.3) of the previous
National Parks Act the term was described as including circumstances
in which the delay necessary to obtain a warrant
would result in
danger to human life or safety or destruction of evidence.
Clause 23 provides for the
custody of seized items, largely using existing provisions of the Criminal
Code. If the ownership of a seized item cannot be ascertained,
it reverts to the Crown (either the Canadian or a provincial Crown, depending
on which level of government employed the officer involved). If
a seized item is perishable, the warden or enforcement officer may dispose
of it or destroy it at his or her discretion.
H. Offences
and Punishment
Clause 24 sets a penalty
for an offence: up to $100,000 for a summary conviction offence or $500,000
on conviction by indictment. The decision as to whether to prosecute
by way of summary conviction or indictment is at the discretion of the
prosecutor, and tends to reflect the seriousness of the offence.
Clause 28 requires that a prosecution by way of summary conviction be
commenced within two years of the date on which the offence became known
to the Minister.
Clauses 25 and 26 establish
a scheme for dealing with seized property.
Clause 27 allows a court
to take further action against a convicted person where justified by the
nature and circumstances of the offence. A court can order a convicted
person to:
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refrain from any activity
that might result in a continuation or repetition of the offence;
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take any action the
court considers appropriate to remedy or avoid any harm that resulted,
or may result, from the offence;
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reimburse the Minister
for the cost of any remedial or preventive action taken as a result
of the offence;
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post a bond to ensure
compliance with any orders made by the court; and
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comply with any
other conditions that the court considers appropriate.
If the court decides to
suspend sentence, it can still make any of the above orders. If
the convicted person does not comply with the orders, or is convicted
of another offence, the court can impose a sentence for up to three years
after the original conviction.
I. Mitigation
of Environmental Damage
Clause 29 deals with situations
in which a polluting substance is discharged within a marine conservation
area. Any person who is responsible for the substance or contributes
to the discharge has a duty to take reasonable measures to
prevent or mitigate any damage to the environment. If the Minister
is dissatisfied with the measures taken, the Minister can order the responsible
parties to take specific measures. If they fail to comply, the Minister
can take such measures on their behalf and at their expense. However,
the Minister cannot become involved if the circumstances are already covered
by the Canada Shipping Act, the Arctic Waters Pollution Prevention
Act, or the Canadian Environmental Protection Act, 1999.
J. Consequential
Amendments
Clauses 31 to 41 make minor
amendments to the Canada National Parks Act, the Department
of Canadian Heritage Act and the Parks Canada Agency Act to
recognize the existence of the Canada National Marine Conservation Areas
Act.
COMMENTARY
National Marine Conservation
Areas are established for two reasons:
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to
protect and conserve areas representative of Canadas ocean environments
and the Great Lakes; and
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to
encourage public understanding, appreciation and enjoyment of this
marine heritage.
The concept itself enjoys
widespread support, but fisheries representatives, as well as others
involved in natural resource industries, have expressed concerns that
the Act as drafted may unduly restrict their activities. Questions
have also been raised as to whether the Department of Canadian Heritage
is the appropriate sponsoring department, or whether the program should
be part of an integrated oceans management plan under the Minister of
Fisheries and Oceans.
A number of the 1999 amendments
recommended have been incorporated into Bill C-10; this recognizes the
importance of the comprehensive land claims process and land claims agreements
to the marine conservation area framework.
One aspect of the Bill that
could attract comment is the definition of precautionary principle.
Although the appropriate definition of the term is the subject of some
debate, there is broad support for the wording of Principle 15 of the
1992 Rio Declaration on Environment and Development:
In order to protect the
environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious
or irreversible damage, lack of full scientific certainty shall not
be used as a reason for postponing cost-effective measures to prevent
environmental degradation.
Bill C-10 considerably expands
this concept by deleting the references to serious or irreversible
damage, full scientific certainty, and cost-effective measures.
By way of comparison, the Canadian Environmental Protection Act,
1999, follows the Rio Declaration closely in its Preamble:
Whereas the Government
of Canada is committed to implementing the precautionary principle that,
where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective
measures to prevent environmental degradation.
The definition of precautionary
principle could be of considerable significance, considering that
clause 9(3) states that the primary considerations in the development
and modification of management plans shall be principles of ecosystem
management and the precautionary principle.
*
Notice: For clarity of exposition, the legislative proposals
set out in the Bill described in this Legislative Summary are stated as
if they had already been adopted or were in force. It is important
to note, however, that bills may be amended during their consideration
by the House of Commons and Senate, and have no force or effect unless
and until they are passed by both Houses of Parliament, receive Royal
Assent, and come into force.
(1)
See the Parks Canada website at:
http://www.parcscanada.gc.ca/library/PC_Guiding_Principles/PARK60_e.htm
(2)
See the Parks Canada website at:
http://www.parkscanada.pch.gc.ca/library/to_NMCA_act/to_act1e.htm
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