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4th Session, 40th Legislature

This HTML version is provided for ease of use and is based on the bilingual version that was distributed in the Legislature after First Reading.

Bill 12

THE WATER PROTECTION AMENDMENT ACT (AQUATIC INVASIVE SPECIES)


  Bilingual version (PDF) Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. W65 amended

1           The Water Protection Act is amended by this Act.

2           The preamble is amended by adding the following after the sixth paragraph:

AND WHEREAS aquatic invasive species pose a significant threat to aquatic ecosystems in Manitoba;

3           Subsection 1(1) is amended

(a) by repealing the definition "invasive species"; and

(b) by adding the following definitions:

"department" means the department of government over which the minister presides. (« ministère »)

"inspector" means an inspector designated under section 30.1. (« inspecteur »)

4           The following is added after clause 2(d):

(d.1) the need to address the threat that aquatic invasive species pose to Manitoba's water resources and aquatic ecosystems;

5           Section 9 and the centred heading before it are repealed.

6           The following is added after section 29 and before Part 4:

PART 3.1

AQUATIC INVASIVE SPECIES

INTERPRETATION

Definitions

29.1(1)     The following definitions apply in this Part and Part 4.

"AIS director" means the director of aquatic invasive species designated under section 29.14. (« directeur de la lutte contre les espèces aquatiques envahissantes »)

"aquatic invasive species" means a species that is designated as an aquatic invasive species under section 29.2. (« espèce aquatique envahissante »)

"carrier" means an animal, plant or other organism or thing that is designated as a carrier under section 29.3. (« vecteur »)

"control order" means an order issued under section 29.10. (« ordre de prévention »)

"control station" means an aquatic invasive species control station established under section 29.7. (« poste de contrôle »)

"control zone" means an area designated as an aquatic invasive species control zone under section 29.13. (« zone réglementée »)

"conveyance" means a motor vehicle, watercraft and aircraft. (« moyen de transport »)

"invasive species" means a species that is not native to Manitoba. (« espèce envahissante »)

"motor vehicle" means

(a) a motor vehicle as defined in subsection 1(1) of The Highway Traffic Act;

(b) an off-road vehicle as defined in The Off-Road Vehicles Act; and

(c) any other self-propelled vehicle that is designed to travel on land. (« véhicule automobile »)

"permit" means a permit issued under section 29.15. (« permis »)

"species" means a species or subspecies of animal, plant or other organism and includes bacteria and viruses. (« espèce »)

"watercraft" means a motorboat, sailboat, personal watercraft, canoe or other thing designed to transport a person on water. (« bateau »)

"water-related equipment" means

(a) a dock, boat lift or trailer for watercraft;

(b) items and equipment used for fishing, such as fishing rods, nets and bait containers;

(c) recreational equipment used in water, such as water skis, wakeboards and water tubes;

(d) scuba gear, wetsuits, waders and other equipment designed to be worn in water;

(e) water tanks, water-hauling equipment and irrigation equipment; and

(f) any other prescribed items. (« matériel nautique »)

Interpretation: "species"

29.1(2)     In this Part, a reference to a species or a member of a species includes

(a) a member of the species whether it is alive or dead;

(b) a member of the species at any stage of development; and

(c) any part of a member of the species.

Similar species

29.1(3)     For the purposes of the administration and enforcement of this Part, a member of a species that is not easily distinguishable from an aquatic invasive species is deemed, in the absence of evidence to the contrary, to be a member of an aquatic invasive species.

Reference to "Part" includes regulations

29.1(4)     A reference to "this Part" includes the regulations made under this Part.

Aquatic invasive species

29.2(1)     The minister may, by regulation, designate a species as an aquatic invasive species if

(a) the species is not native to Manitoba;

(b) members of the species live in or near a water body; and

(c) the species has a negative effect on aquatic ecosystems in Manitoba or is likely to have a negative effect on aquatic ecosystems in Manitoba.

Designation even if species not in Manitoba

29.2(2)     A species may be designated as an aquatic invasive species even if the species is not present in Manitoba.

Carriers

29.3        The minister may, by regulation, designate as a carrier

(a) a plant, animal or other organism, or any part of, or product derived from, a plant, animal or other organism that is capable of being a host to an aquatic invasive species; and

(b) any thing that is capable of transporting or facilitating the movement of an aquatic invasive species from one place to another.

PROHIBITIONS

Prohibitions re aquatic invasive species

29.4(1)     A person must not

(a) possess a member of an aquatic invasive species in Manitoba;

(b) bring a member of an aquatic invasive species into Manitoba or cause it to be brought into Manitoba;

(c) deposit or release a member of an aquatic invasive species in Manitoba or cause it to be deposited or released in Manitoba; or

(d) transport a member of an aquatic invasive species in Manitoba.

Exceptions

29.4(2)     Subsection (1) does not apply

(a) in prescribed circumstances; or

(b) to a person who is the holder of a permit that authorizes the person to engage in an activity that is prohibited under subsection (1).

DETECTING AQUATIC INVASIVE SPECIES

Surveys to detect invasive species

29.5(1)     An inspector or officer may conduct a survey in any area to

(a) detect the presence of an invasive species, including a species that has not been designated as an aquatic invasive species; or

(b) determine whether an invasive species, including a species that has not been designated as an aquatic invasive species, is spreading across Manitoba.

Entry on land permitted to conduct survey

29.5(2)     For the purpose of conducting a survey, an inspector or officer may enter upon any land or water body at any reasonable time.

Expert assistance

29.5(3)     When conducting a survey, an inspector or officer may be accompanied by a person with technical or scientific experience.

No entry to buildings

29.5(4)     Subsection (1) does not authorize an inspector or officer, or a person acting under his or her direction, to enter a building or other enclosed structure.

Survey actions

29.5(5)     When conducting a survey, an inspector or officer and any person acting under his or her direction may

(a) examine any thing that he or she has reasonable grounds to suspect is an invasive species or may contain evidence of an invasive species; and

(b) conduct any test or analysis, take any specimen or sample, set up any equipment and take any photographs or other images that may assist in the survey.

Inspections at water bodies

29.6        For the purpose of determining the presence of aquatic invasive species or carriers, an inspector may conduct a visual or tactile inspection of

(a) the exterior of a conveyance that is docked or moored in a water body or that has been left at or near an access point to a water body; and

(b) water-related equipment that is in a water body or that is located in a public area in close proximity to a water body.

Control stations

29.7(1)     The department may establish permanent or temporary control stations at which inspectors and officers may

(a) inspect watercraft and motor vehicles transporting watercraft that pass through the station as well as any water-related equipment in those watercraft and motor vehicles; and

(b) clean or treat watercraft, motor vehicles and any water-related equipment in a watercraft or motor vehicle, if there are reasonable grounds to suspect those things may contain or are carrying an aquatic invasive species or a carrier.

Control station locations

29.7(2)     Control stations may be established

(a) at or near Manitoba's borders;

(b) at or near access points to water bodies; and

(c) on highways that lead to water bodies.

Notice of control stations

29.7(3)     A control station must be identified by prescribed signs or notices.

Duties at control stations

29.7(4)     The operator of a watercraft, or a motor vehicle transporting a watercraft, that is approaching a control station must

(a) proceed directly to the station;

(b) allow an inspection of his or her watercraft and motor vehicle as well as any water-related equipment in the watercraft or motor vehicle to take place;

(c) provide such reasonable assistance and information to enable the inspector or officer to perform the inspection;

(d) allow his or her watercraft, motor vehicle or water-related equipment to be cleaned or treated, if an inspector or officer advises that cleaning or treatment is required; and

(e) not leave until authorized to do so by an inspector or officer.

MEASURES TO CONTAIN OR ERADICATE AQUATIC INVASIVE SPECIES

Restricted access re aquatic invasive species

29.8(1)     When a member of an aquatic invasive species has been found in Manitoba, an inspector, officer or a person acting under his or her direction may

(a) establish a temporary barrier around the immediate area where the member was found or around a conveyance or structure where the member was found; or

(b) post or erect signs or markers around the immediate area where the member was found or around the conveyance or structure where the member was found prohibiting public access.

Restricted access re other invasive species

29.8(2)     If an inspector or officer finds a member of an invasive species that has not been designated as an aquatic invasive species but he or she has reason to suspect that the species may have a negative effect on aquatic ecosystems in Manitoba, the inspector, officer or a person acting under his or her direction may take the actions set out in clause (1)(a) or (b) in relation to the member that was found.

Duty to comply with barriers and signs

29.8(3)     Unless authorized by an inspector or officer, a person must not enter an area, conveyance or structure

(a) around which a temporary barrier has been established under clause (1)(a) or subsection (2); or

(b) if a sign or marker posted or erected under clause (1)(b) or subsection (2) prohibits entry.

Decontamination order

29.9(1)     An inspector or officer may issue a written order described in subsection (2) to a person who owns, operates or possesses a conveyance or water-related equipment if the inspector or officer has reasonable grounds to suspect that

(a) it contains or is carrying a member of an aquatic invasive species or a carrier; or

(b) it has been operated or used outside of Manitoba.

Terms of decontamination order

29.9(2)     A decontamination order may require a person to do one or more of the following by a deadline specified in the order:

(a) keep the conveyance or water-related equipment at a dock or mooring or other specified location in a water body until it is removed from the water;

(b) transport the conveyance or water-related equipment to a specified location

(i) to permit further inspection, or

(ii) to allow a specified person to clean or treat it;

(c) clean or treat the conveyance or water-related equipment in the manner specified in the order;

(d) report to a specified location with proof of compliance with the order.

Compliance with decontamination order

29.9(3)     A person who has been issued a decontamination order must

(a) comply with the order; and

(b) ensure that the conveyance or water-related equipment does not come into any further contact with a water body until the person has complied with the order.

Control orders

29.10(1)    When a member of an aquatic invasive species has been found in Manitoba, an inspector or officer may issue a written order to

(a) the person who possesses the member;

(b) the person who owns or occupies, or who is in charge of, the land, building or place where the member was found; or

(c) the person who operates, possesses or is in charge of the conveyance or structure where the member was found.

Terms of control order

29.10(2)    A control order may require a person to do one or more of the following to prevent the spread of the aquatic invasive species:

(a) restrict or stop a specified activity that may lead to the spread of the aquatic invasive species;

(b) restrict or prohibit access to any place or location where a member of the species has been found, in the manner specified in the order;

(c) undertake specified activities to prevent the spread of the aquatic invasive species;

(d) clean or treat a specified carrier, conveyance or structure in accordance with directions contained in the order;

(e) remove or eradicate the aquatic invasive species or a specified carrier in accordance with directions contained in the order.

Order requirements

29.10(3)    A control order must

(a) identify the aquatic invasive species that is the subject of the order;

(b) set out the time period when the order is in effect, which must not exceed 60 days; and

(c) set out the deadline to complete any actions required under clause (2)(c), (d) or (e).

Appeals of control orders

29.11(1)    A person who has been issued a control order may appeal the order by giving written notice to the AIS director within 10 days after the order is served.

Notice of appeal

29.11(2)    The notice of appeal must state the reasons for the appeal and any facts relied on by the appellant.

Stay

29.11(3)    Pending the outcome of the appeal, the filing of an appeal operates as a stay of a requirement in the control order referred to in clause 29.10(2)(c), (d) or (e), but the filing of the appeal does not operate as a stay of any other requirement of the order.

Powers on appeal

29.11(4)    The AIS director must consider the appeal as soon as practicable after it is received and may confirm the control order, quash it, or vary it in any manner he or she considers appropriate.

Notice to appellant

29.11(5)    The AIS director must give notice of his or her decision on the appeal to the appellant within seven days after making the decision.

Eradicating invasive species and carriers

29.12(1)    For the purposes set out in subsection (2), an inspector, officer or a person acting under his or her direction may

(a) remove or eradicate members of an aquatic invasive species;

(b) clean, treat, remove or eradicate a carrier; and

(c) clean or treat a conveyance or structure where the member was found.

Required purposes

29.12(2)    An action set out in subsection (1) may only be taken for one of the following purposes:

(a) to prevent the introduction of an aquatic invasive species;

(b) to prevent the spread of an aquatic invasive species;

(c) to control or eradicate an aquatic invasive species.

Entry permitted

29.12(3)    An inspector, officer or a person acting under his or her direction may enter upon any land or water body at any reasonable time to carry out the actions set out in subsection (1).

Required assistance

29.12(4)    The following persons must provide such reasonable assistance and information to enable an inspector, officer or a person acting under his or her direction to carry out the actions set out in subsection (1):

(a) a person who possesses the member of the species or a carrier;

(b) a person who owns or occupies, or who is in charge of, the land, building or place where the member of the species was found;

(c) a person who operates, possesses or is in charge of the conveyance or structure where the member of the species was found.

Aquatic invasive species control zones

29.13(1)    The minister may, by regulation, designate an area of Manitoba as an aquatic invasive species control zone.

Area to be designated

29.13(2)    A control zone may include any area of Manitoba, whether or not an aquatic invasive species is present in the area, or in all parts of the area.

Content of regulation

29.13(3)    A regulation designating a control zone must

(a) identify the area that is the subject of the designation;

(b) identify the aquatic invasive species that is the subject of the designation; and

(c) specify the measures to prevent the introduction of the aquatic invasive species or control its spread in the control zone, such as

(i) regulating or prohibiting the movement of conveyances, water-related equipment and carriers within the control zone, or into or out of the control zone,

(ii) regulating or prohibiting specified activities within the control zone that may lead to the introduction or spread of the aquatic invasive species, and

(iii) prohibiting or restricting public access to the control zone or specified areas of the control zone, including regulating or prohibiting the entry or movement of conveyances and water-related equipment in the control zone or in specified areas of the control zone.

MISCELLANEOUS PROVISIONS

Aquatic invasive species director

29.14(1)    The minister may designate a person as the director of aquatic invasive species.

Role

29.14(2)    The director of aquatic invasive species is responsible for the overall management of all programs, initiatives and measures to detect, contain and eradicate aquatic invasive species.

Permits

29.15(1)    The AIS director may issue a permit that authorizes a person to engage in an activity specified in the permit that would otherwise be prohibited under this Part if the activity is for one of the following purposes:

(a) scientific research;

(b) public education;

(c) the detection, containment or eradication of an aquatic invasive species;

(d) a prescribed purpose.

Applications

29.15(2)    A person applying for a permit must

(a) apply to the AIS director on a form approved by the AIS director;

(b) pay any prescribed application fee; and

(c) provide any additional information or documents requested by the AIS director.

Issuing permit

29.15(3)    The AIS director may issue a permit to an applicant if he or she is satisfied that

(a) the applicant has the required knowledge, equipment and facilities to prevent the unauthorized release or spread of an aquatic invasive species;

(b) the applicant will take all necessary steps to prevent the unauthorized release or spread of an aquatic invasive species; and

(c) the issuance of the permit is in the public interest.

Terms and conditions

29.15(4)    The AIS director may impose any terms or conditions on the permit that he or she considers appropriate, including conditions that

(a) restrict the times or locations where an authorized activity may be carried out;

(b) limit the circumstances in which an authorized activity may be carried out;

(c) require the permit holder to prepare a plan to manage, contain or eradicate an aquatic invasive species or prevent its release;

(d) require the permit holder to submit reports to the AIS director; and

(e) require the permit holder to furnish security to the AIS director in an amount specified in the permit to ensure compliance with the permit.

Compliance

29.15(5)    The permit holder must comply with any terms or conditions set out in the permit.

Certified service providers

29.16(1)    The AIS director may certify persons who clean or treat watercraft and water-related equipment for hire as certified service providers.

Applications

29.16(2)    An application for certification must be made on a form approved by the AIS director and be accompanied by any prescribed application fee.

When certification may occur

29.16(3)    The AIS director may issue a certification to an applicant if

(a) the applicant and all of his or her employees who clean or treat watercraft and water-related equipment have satisfactorily completed prescribed training regarding aquatic invasive species;

(b) the applicant has the necessary equipment and facilities to clean or treat watercraft and water-related equipment in a prescribed manner; and

(c) the AIS director is satisfied that the applicant and all of his or her employees will clean or treat watercraft and water-related equipment in a prescribed manner.

Term

29.16(4)    A certification is valid for two years from the date of certification, unless the AIS director cancels the certification earlier.

Prohibition

29.16(5)    A person must not hold himself or herself out as a certified service provider unless he or she holds a valid certification.

Compensation

29.17       No right of compensation exists against the government, an inspector or officer or any person acting under authority of this Act in respect of anything that is seized, treated, removed or eradicated under this Part, but the minister may provide such compensation to a person as the minister considers fair and reasonable in the circumstances.

Regulations

29.18(1)    The minister may make regulations

(a) respecting carriers, including regulating or prohibiting

(i) the entry of prescribed carriers into Manitoba,

(ii) the movement of prescribed carriers in Manitoba, and

(iii) the possession of prescribed carriers in Manitoba;

(b) respecting water-related equipment;

(c) respecting the operation of control stations;

(d) respecting the operation of conveyances in water bodies, including prescribing requirements respecting the cleaning or treatment of conveyances when they are placed into, or removed from, a water body;

(e) prescribing the manner in which orders under this Part must be served;

(f) respecting the issuance, amendment and revocation of permits;

(g) respecting certifications under section 29.16;

(h) exempting persons or classes of persons from the requirements of this Part or specified provisions of this Part, subject to any prescribed conditions or restrictions;

(i) defining any word or phrase used but not defined in this Part;

(j) prescribing anything referred to in this Part as being prescribed;

(k) respecting any matter necessary or advisable to carry out the purposes of this Part.

Scope and application of regulations

29.18(2)    A regulation under this Part

(a) may be general or particular in its application;

(b) may establish classes of persons, carriers, conveyances or other things and may apply differently to different classes; and

(c) may apply to the whole or any part of Manitoba.

7           Section 30 of the English version is amended by striking out everything after "officers for the" and substituting "purpose of administering and enforcing this Act.".

8           The following is added after section 30:

Inspectors

30.1        The minister may designate any persons, or the members of any class of persons, as inspectors for the purposes of Part 3.1.

Identification

30.2        An officer or inspector exercising a power under this Act must produce identification on request.

9           The following is added after section 32 and before the centred heading that follows it:

Stopping and inspecting conveyances

32.1(1)     When reasonably required to administer or determine compliance with this Act, an officer may stop a conveyance and conduct an inspection if he or she has reasonable grounds to believe that

(a) the conveyance is in a water body or has recently been in a water body; or

(b) the conveyance contains or is towing or transporting a watercraft or water-related equipment.

Operator to stop

32.1(2)     When an officer signals or requests a person operating a conveyance to stop, the person must immediately bring the conveyance to a stop and must not proceed until permitted to do so by the officer.

Inspection powers

32.1(3)     Subsection 31(5) and section 32 apply to an inspection conducted under this section.

Warrant for search and seizure

32.2(1)     A justice, upon being satisfied by information on oath that there are reasonable grounds to believe that

(a) an offence under this Act is being or has been committed; and

(b) there is to be found in any place, premises or conveyance any thing that will afford evidence of the offence;

may at any time issue a warrant authorizing an officer and any other person named in the warrant to enter and search the place, premises or conveyance for any such thing, and to seize it and as soon as practicable bring it before a justice, or report on it to a justice, to be dealt with according to law.

Application without notice

32.2(2)     A warrant under this section may be issued upon application without notice.

Search and seizure without warrant

32.2(3)     An officer may exercise the power of search and seizure without a warrant if the conditions for obtaining a warrant exist but it is not practicable in the circumstances to obtain one. In that case, the item seized must be brought before, or reported to, a justice, who must deal with it according to law.

Seizure in execution of duties

32.3        An officer who is lawfully in a place while acting in the course of his or her duties and who discovers an offence being committed under this Act may, without a warrant, seize an aquatic invasive species, a conveyance or any other thing which is being used to commit the offence or which affords evidence of the offence, and bring it before a justice, or report on it to a justice, to be dealt with according to law.

10(1)       Subsection 33(1) is amended by adding ", inspector" after "an officer" wherever it occurs.

10(2)       Subsection 33(4) is amended in the part before clause (a), by adding "or (5.1)" after "subsection (5)".

10(3)       The following is added after subsection 33(5):

Additional orders on conviction

33(5.1)     In addition to any fine or imprisonment that may be imposed under subsection (4) or (5), a justice who convicts a person of an offence under this Act may order the person

(a) to pay to the government or any other person all or part of the costs incurred to remedy or avoid any harm to the environment that resulted or may result from the commission of the offence; or

(b) to take any action that the justice considers appropriate to remedy or avoid any harm to the environment that resulted or may result from the commission of the offence.

11          Section 36 is amended in the part before clause (a) by adding ", inspector" after "an officer".

12          Clause 38(a) is amended by adding ", other than a regulation made under Part 3.1" at the end.

13(1)       Clause 39(1)(a) is repealed.

13(2)       Subsection 39(3) is amended by striking out "39(1)(a) to (d)" and substituting "39(1)(b) to (d)".

14          Subsection 40(1) is amended in the part before clause (a) by striking out "39(1)(a) to (d)" and substituting "39(1)(b) to (d)".

Coming into force

15          This Act comes into force on a day to be fixed by proclamation.

Explanatory Note

This Bill amends The Water Protection Act to address aquatic invasive species that threaten Manitoba's aquatic ecosystems. It prohibits the possession, release and transportation of aquatic invasive species, except in specified circumstances.

A species may be designated as an aquatic invasive species if its members live in or near a water body, it is not native to Manitoba and it is likely to have a negative effect on Manitoba's aquatic ecosystems. The Bill also enables regulations to be made to address plants, animals and other carriers that may transport or serve as a host to aquatic invasive species.

Control stations may be established where motor vehicles and watercraft can be inspected and cleaned or treated to remove aquatic invasive species or carriers. Orders can be issued that require the cleaning or treatment of watercraft, motor vehicles and aircraft. When an aquatic invasive species has been found, orders can be issued that require certain persons to take steps to prevent the spread of the species, including killing or removing the species.

The minister may designate an area of Manitoba as an aquatic invasive species control zone. Restrictions and prohibitions can be established by regulation that are intended to prevent the introduction of an aquatic invasive species or control its spread in the control zone.

Inspectors are authorized to conduct surveys to determine the presence of aquatic invasive species. Officers are given a variety of powers to enforce rules dealing with aquatic invasive species. Inspectors and officers are authorized to remove or kill aquatic invasive species and carriers and to clean or treat vehicles or structures where aquatic invasive species have been found.