Nunavut Waters and Nunavut Surface Rights Tribunal Act (S.C. 2002, c. 10)

Violations

Marginal note:Function of inspectors

94.02 Persons who are designated as inspectors under subsection 85(1) are authorized to issue notices of violation.

Marginal note:Commission of violation

• 94.03 (1) Every person who contravenes or fails to comply with a provision, order, direction, decision, term or condition designated under paragraph 94.01(1)(a) commits a violation and is liable to a penalty in the amount that is determined in accordance with the regulations.

• Marginal note:Purpose of penalty

  (2) The purpose of the penalty is to promote compliance with this Part and not to punish.

Marginal note:Liability of directors, officers, etc.

94.04 If a corporation commits a violation, any director, officer or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty in the amount that is determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Part.

Marginal note:Proof of violation

94.05 In any proceedings under this Part against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee or agent or mandatary of the person, whether or not the employee or agent or mandatary is identified or proceeded against in accordance with this Part.

Marginal note:Issuance and service of notice of violation

• 94.06 (1) If an inspector believes on reasonable grounds that a person has committed a violation, the inspector may issue a notice of violation and cause it to be served on the person.

• Marginal note:Contents

  (2) The notice of violation must

  • (a) name the person that is believed to have committed the violation;

  • (b) set out the relevant facts surrounding the violation;

  • (c) set out the amount of the penalty;

  • (d) inform the person of their right to request a review with respect to the violation or the amount of the penalty, and of the period within which that right must be exercised;

  • (e) inform the person of the time and manner of paying the penalty; and

  • (f) inform the person that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they are considered to have committed the violation and are liable to the penalty.

Rules about Violations

Marginal note:Certain defences not available

• 94.07 (1) A person named in a notice of violation does not have a defence by reason that they

  • (a) exercised due diligence to prevent the commission of the violation; or

  • (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate them.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Part applies in respect of a violation to the extent that it is not inconsistent with this Part.

Marginal note:Continuing violation

94.08 A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

Marginal note:Violations or offences

• 94.09 (1) Proceeding with any act or omission as a violation under this Part precludes proceeding with it as an offence under this Part, and proceeding with it as an offence under this Part precludes proceeding with it as a violation under this Part.

• Marginal note:Violations not offences

  (2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.

Marginal note:Limitation period or prescription

94.1 No notice of violation is to be issued more than two years after the day on which the Minister becomes aware of the acts or omissions that constitute the alleged violation.

Reviews

Marginal note:Right to request review

94.11 A person who is served with a notice of violation may — within 30 days after the day on which it is served or within any longer period that is prescribed by the regulations — make a request to the Minister for a review of the amount of the penalty or the facts of the violation, or both.

Marginal note:Correction or cancellation of notice of violation

94.12 At any time before a request for a review in respect of a notice of violation is received by the Minister, an inspector may cancel the notice of violation or correct an error in it.

Marginal note:Review

94.13 On receipt of a request for a review in respect of a notice of violation, the Minister shall conduct the review.

Marginal note:Object of review

• 94.14 (1) The Minister shall determine, as the case may be, whether the amount of the penalty was determined in accordance with the regulations or whether the person committed the violation, or both.

• Marginal note:Determination

  (2) The Minister shall render a written determination, with reasons, and cause the person who requested the review to be served with a copy. A copy shall also be provided without delay to the Board.

• Marginal note:Correction of penalty

  (3) If the Minister determines that the amount of the penalty was not determined in accordance with the regulations, the Minister shall correct it.

• Marginal note:Responsibility to pay penalty

  (4) If the Minister determines that the person who requested the review committed the violation, that person is liable to the penalty as set out in the determination.

• Marginal note:Determination final

  (5) A determination made under this section is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.

Marginal note:Burden of proof

94.15 If the facts of a violation are reviewed, the inspector who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.

Responsibility

Marginal note:Payment

94.16 If a person pays the penalty, the person is considered to have committed the violation and proceedings in respect of it are ended. The Minister shall immediately notify the Board of the violation.

Marginal note:Failure to act

94.17 A person that neither pays the penalty within the period set out in the notice of violation nor requests a review within the period referred to in section 94.11 is considered to have committed the violation and is liable to the penalty. The Minister shall immediately notify the Board of the violation.

Recovery of Penalties

Marginal note:Debts to Her Majesty

• 94.18 (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.

• Marginal note:Limitation period or prescription

  (2) No proceedings to recover the debt are to be instituted more than five years after the day on which the debt becomes payable.

Marginal note:Certificate

• 94.19 (1) The Minister may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 94.18(1).

• Marginal note:Registration of certificate

  (2) Registration of a certificate of non-payment in any court of competent jurisdiction has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.

General

Marginal note:Authenticity of documents

94.2 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 94.06(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.

Marginal note:Publication

94.3 The Board shall make public the nature of a violation, the name of the person who committed it and the amount of the penalty.

PART 2Nunavut Surface Rights Tribunal

Interpretation

Marginal note:Definitions

95 The definitions in this section apply in this Part.

flora

flora means terrestrial and aquatic flora and any of their parts or products. It does not include trees suitable for commercial production of lumber or other building materials except where such trees are required by Inuit for local use, land-based activities or handicraft production. (espèces végétales)

harvesting

harvesting means, in relation to wildlife, reduction into possession and includes hunting, trapping, fishing as defined in section 2 of the Fisheries Act, netting, egging, picking, collecting, gathering, spearing, killing, capturing or taking by any means. (exploitation)

Tribunal

Tribunal means the Nunavut Surface Rights Tribunal established by section 99. (Tribunal)

wildlife

wildlife

• (a) means terrestrial, aquatic, avian and amphibian fauna in their wild state and any of their parts or products; and

• (b) subject to subsection 152(2), includes flora. (ressources fauniques)

General Provisions

Marginal note:Review

96 The Minister shall review the provisions of this Part, except those provisions that implement obligations under the Agreement, with the representatives of any aboriginal group that is negotiating, in relation to Nunavut, a land claim, the implementation of a treaty or self-government in order to determine whether the provisions under review are inconsistent with the matters being negotiated and, if so, whether those provisions should be amended.

Marginal note:Access with consent

• 97 (1) For greater certainty, except where otherwise provided in the Agreement, no persons, other than Inuit, may enter, cross or remain on Inuit-owned land without the consent of the designated Inuit organization.

• Marginal note:Effect of entry order

  (2) Neither the issuance of an entry order by the Tribunal nor any term or condition of such an entry order has the effect of exempting the person to whom the entry order is issued from any obligation, restriction or prohibition imposed by an Act of Parliament, including an obligation, restriction or prohibition set out in the Agreement, or by an instrument made or issued under an Act of Parliament.

Her Majesty

Marginal note:Binding on Her Majesty

98 This Part is binding on Her Majesty in right of Canada or a province.

DIVISION 1Establishment and Organization of Tribunal

Tribunal Established

Marginal note:Establishment

• 99 (1) There is hereby established the Nunavut Surface Rights Tribunal consisting of a Chairperson and not fewer than two nor more than ten other members to be appointed by the Minister.

• Marginal note:Odd number

  (2) The Minister shall make such appointments as are necessary to ensure that an odd number of members holds office at any time.

Marginal note:Residency qualification

• 100 (1) At least two of the members shall be resident in Nunavut.

• Marginal note:Effect of ceasing to be resident

  (2) If the Minister determines that a member has ceased to be resident in Nunavut and that the condition imposed by subsection (1) is not satisfied, the appointment of the member is terminated as of the date on which the member receives written notification from the Minister that the determination has been made.

Marginal note:Term of office

• 101 (1) A member shall be appointed to hold office for a term not exceeding three years.

• Marginal note:Acting after expiry of term

  (2) If the term of a member expires before the member has made a decision in a matter for which a hearing is held, the member may, with the authorization of the Chairperson, continue to act as a member only in relation to that matter until the hearing is concluded and a decision is made. The office of the member is deemed to be vacant as soon as the term expires for the purpose of the appointment of a replacement.

Marginal note:Reappointment

102 A member is eligible to be reappointed to the Tribunal in the same or another capacity.

Marginal note:Duties of Chairperson

103 The Chairperson is the chief executive officer of the Tribunal and has such powers, duties and functions as are prescribed by the by-laws of the Tribunal.

Marginal note:Remuneration and expenses

• 104 (1) The members of the Tribunal shall receive fair remuneration, as determined by the Minister, for the performance of their duties and shall be paid such travel and living expenses incurred while absent from their ordinary place of residence in the course of performing their duties as are consistent with Treasury Board directives for public servants.

• Marginal note:Workers’ compensation

  (2) A member is deemed to be an employee for the purposes of the Government Employees Compensation Act and to be employed in the public service of Canada for the purposes of any regulations made under section 9 of the Aeronautics Act.