Be it enacted by the Governor and Assembly as follows:
1 This Act may be cited as the Endangered Species Act.
2 The purpose of this Act is to provide for the protection, designation, recovery and other relevant aspects of conservation of species at risk in the Province, including habitat protection, recognizing
(a) the goal of preventing any species in the Province from becoming extirpated or extinct as a consequence of human activities; and
(b) the precautionary principle that a lack of full scientific certainty, where such cannot be reasonably obtained, must not be used as a reason for postponing measures to avoid or minimize the threat of a species at risk in the Province.
3 In this Act,
(a) "conservation officer" means a conservation officer within the meaning of the Wildlife Act and a person designated or appointed a conservation officer pursuant to this Act;
(b) "critical habitat" means land that is essential for the long-term survival of endangered or threatened species and identified as critical habitat pursuant to Section 14;
(c) "Department" means the Department of Natural Resources;
(d) "endangered species" means a species that faces imminent extinction or extirpation and is listed as an endangered species pursuant to Section 10;
(e) "extinct species" means a species that no longer exists and is listed as an extinct species pursuant to Section 10;
(f) "extirpated species" means a species that no longer exists in the wild in the Province but exists in the wild outside the Province and is listed as an extirpated species pursuant to Section 10;
(g) "Fund" means the Species-at-risk Conservation Fund established pursuant to this Act;
(h) "Group" means the Species-at-risk Working Group established pursuant to this Act;
(i) "Minister" means the Minister of Natural Resources;
(j) "private lands" means lands situate in the Province that are not public lands;
(k) "public lands" means lands situate in the Province that are owned or held by or on behalf of Her Majesty in right of the Province or Canada;
(l) "recovery plan" means a statement of needs and actions to be undertaken for the recovery of an endangered or threatened species;
(m) "species" means a plant, animal or other organism, and includes one or more populations of a species, and the eggs, larvae or other forms of developmental life of a species and any part of an individual of a species;
(n) "species at risk" means a species that is determined to be extinct, extirpated, vulnerable, threatened or endangered and is listed pursuant to Section 10;
(o) "threatened species" means a species that is likely to become endangered if the factors affecting its vulnerability are not reversed and is listed as a threatened species pursuant to Section 10;
(p) "vulnerable species" means a species of special concern due to characteristics that make it particularly sensitive to human activities or natural events and that is listed as a vulnerable species pursuant to Section 10.
4 (1) This Act binds Her Majesty in right of the Province, Her Majesty's corporations, agents, administrators, servants and employees and Government agencies.
(2) This Act binds Her Majesty in right of Canada and Her Majesty's corporations, agents, administrators, servants and employees and Government agencies.
5 (1) The Minister is responsible for the general supervision and management of this Act.
(2) The Minister may, in writing, delegate to any person, who has the qualifications and experience, any power or duty conferred or imposed on the Minister pursuant to this Act.
(3) The Minister may enter into agreements relating to any matter coming within the provisions of this Act.
6 (1) Conservation officers are responsible for the enforcement of this Act.
(2) A conservation officer in carrying out duties pursuant to this Act and the regulations, has the powers, authorities and protections of a conservation officer under the Wildlife Act and, for greater certainty, Sections 88 to 100 of that Act apply mutatis mutandis.
(3) The Minister may designate any person or class of persons to act as conservation officers for the purpose of this Act and the regulations.
(4) The Minister may not designate a person or class of persons employed by the federal government unless that government agrees.
(5) The protection afforded to a conservation officer by the Wildlife Act or any other enactment extends to any other person while and to the extent that that person is in the course of assisting a conservation officer under the conservation officer's direction.
7 (1) There is hereby established a fund to be known as the Species-at-risk Conservation Fund.
(2) The Fund consists of
(a) real or personal property acquired by the Minister, on behalf of the Fund, by agreement, gift, donation, bequest or devise;
(b) income accruing to the Fund;
(c) where the Minister disposes of real or personal property of the Fund, the proceeds from the disposition; and
(d) with the approval of the Minister of Finance, penalties received by the Government with respect to any matter under the administration of the Minister pursuant to this Act.
(3) The Minister may expend, in accordance with the Provincial Finance Act, money from the Fund for
(a) the preparation of scientific status reports on species at risk;
(b) activities for the recovery of species at risk in the Province;
(c) activities to prevent species from becoming at risk in the Province;
(d) the acquisition of land for the maintenance and restoration of species at risk and species-at-risk habitats and ecosystems;
(e) any other purpose related to species at risk.
8 (1) There is hereby established a committee to be known as the Species-at-risk Working Group consisting of five members appointed by the Minister.
(2) The membership of the Group shall include
(a) one person employed by the Department who shall be the chair of the Group;
(b) one person employed by another department of Government; and
(c) three members at large.
(3) The Department shall appoint an employee of the Department to act as secretary to the Group.
(4) The members appointed to the Group shall be persons who have scientific expertise related to the biology of plants, animals or other organisms.
(5) A member of the Group may be paid such remuneration as determined by the Minister and may also be reimbursed for reasonable travel and other expenses incurred in carrying out that member's duties.
(6) A member of the Group holds office for such term as the Minister determines and may be re-appointed.
(7) A decision of the Group respecting the listing of species at risk must be unanimous.
9 (1) The Group shall
(a) provide the Minister with a categorized list of the species at risk in the Province, which list shall include those species native to the Province that are listed nationally as species at risk;
(b) advise the Minister annually of any addition or deletion of a species to or from the list referred to in clause (a); and
(c) at the request of the Minister, provide advice respecting the conservation and management of species at risk, and their habitats in the Province.
(2) The Group shall base its decisions to list species pursuant to clause (1)(a) and to add or delete species pursuant to clause (1)(b) upon biological and other scientific information only.
(3) Notwithstanding subsection (1), the Minister may on an emergency basis, regardless of whether the biological or scientific information is available, list endangered or threatened species where, in the opinion of the Minister, there is an imminent threat to the survival of the species.
10 (1) Where the Group provides the Minister with a categorized list of species at risk in the Province, or with any additions or deletions to the list, or where the Minister lists endangered or threatened species pursuant to subsection 9(3), the species listed from time to time are deemed to be the listed species at risk for the purpose of this Act.
(2) The exercise of authority by the Group or the Minister in listing the species at risk in the Province is a regulation within the meaning of the Regulations Act. 11 (1) No person shall
(a) kill, injure, possess, disturb, take or interfere with or attempt to kill, injure, possess, disturb, take or interfere with an endangered or threatened species;
(b) possess for sale, offer for sale, sell, buy, trade or barter an endangered or threatened species;
(c) destroy, disturb or interfere with or attempt to destroy, disturb or interfere with the nest, nest shelter or den of an endangered or threatened species;
(d) contravene any regulation made with respect to a critical habitat; or
(e) contravene an order made pursuant to Section 17.
(2) Subsection (1) does not apply to a person who is the holder of a permit issued pursuant to Section 12 to the extent that the permit authorizes activities that would otherwise be prohibited pursuant to subsection (1).
(3) A person in possession of an endangered or threatened species does not violate clause (1)(a) if the person was in lawful possession of the species at the time the species was listed or if the person subsequently lawfully acquired the species.
12 (1) Upon application, the Minister may issue to a person a permit authorizing the person to collect, possess, disturb or interfere with an endangered or threatened species for
(a) scientific or education purposes or purposes related to the conservation of the endangered or threatened species; or
(b) the protection of human health or safety.
(2) A person who makes an application for a permit pursuant to subsection (1) shall supply the Minister with any information the Minister may require for the purpose of determining whether a permit may be issued.
(3) A permit issued pursuant to subsection (1) may be issued subject to such terms and conditions as the Minister considers appropriate.
(4) The holder of a permit shall comply with the terms and conditions of the permit.
13 (1) The Minister shall
(a) within one year of the listing of an endangered species; and
(b) within two years of the listing of a threatened species,
prepare a recovery plan for the species.
(2) A recovery plan prepared pursuant to subsection (1) shall
(a) identify the needs of and threats to an endangered or threatened species;
(b) identify the viable status needed for recovery;
(c) identify options for the recovery of the endangered or threatened species;
(d) identify the costs and benefits of the options referred to in clause (c); and
(e) recommend a course of action or a combination of actions for the recovery of an endangered or threatened species.
(3) A recovery plan may include provisions respecting one or more endangered or threatened species and may, where the Minister considers it appropriate, include ecosystem management in the recovery plan.
(4) The Minister may determine the priority in which any recovery plan or any portion of a recovery plan will be implemented.
(5) Factors that the Minister shall take into consideration when determining the priority to be assigned to a recovery plan or any portion of a recovery plan include
(a) whether scientific evidence indicates that the species referred to in the recovery plan is naturally becoming extinct;
(b) whether it is technically or economically feasible to recover the species; and
(c) the status of species elsewhere.
(6) The Minister may, to the extent possible, prepare a recovery plan in co-operation with other jurisdictions where the endangered or threatened species is also found.
(7) Where a recovery plan is in existence before to the coming into force of this Act or where a recovery plan has been prepared in another jurisdiction for the endangered or threatened species, the Minister may adopt that recovery plan in lieu of the requirements of subsection (1).
14 (1) Where it is necessary for the purpose of implementing a recovery plan, the Minister may designate specific geographical areas of the Province as critical habitat.
(2) Critical habitat shall not include the entire geographical area that can be occupied by the threatened or endangered species unless inclusion is considered essential for the survival of the species. (3) The Minister may designate critical habitat on private lands only where the Minister is satisfied that sufficient critical habitat of the endangered or threatened species does not exist on public lands.
(4) The Minister may make regulations respecting all or any specific critical habitat for the purpose of controlling, restricting or prohibiting any use of, access to, activity on or the release of any substances on or in the critical habitat for such period as considered necessary.
(5) The exercise by the Minister of the authority contained in subsection (3) or (4) is a regulation within the meaning of the Regulations Act.
15 (1) Where the Minister proposes to designate critical habitat on private lands, the Minister shall publish a notice in the Royal Gazette and provide a notice to each registered owner of the lands as shown on the latest revised assessment roll.
(2) The notice referred to in subsection (1) shall
(a) contain a description of the lands sufficient to identify the proposed critical habitat;
(b) contain a copy of the regulations proposed to be applicable to the lands; and
(c) provide an opportunity for registered owners of land to comment on the proposed designation within sixty days of the date set out in the notice.
(3) A notice given pursuant to subsection (1) is deemed to be sufficiently given five days after the notice is sent by mail to the address of the registered owner as shown on the latest revised assessment roll.
(4) The Minister shall not designate critical habitat on private lands until after the expiry of the time referred to in clause (2)(c).
(5) No person shall destroy, disturb or interfere with or attempt to destroy, disturb or interfere with lands proposed to be designated as critical habitat during the time referred to in clause (2)(c).
16 Where critical habitat has been designated pursuant to Section 14, the Minister shall record a copy of the designation in the registry of deeds for the registration district where the land is situate and shall provide a copy of the designation and accompanying regulations to
(a) each registered owner of the lands as shown on the latest revised assessment roll; and
(b) the clerk of the municipality in which the critical habitat is situated.
17 (1) Where endangered or threatened species are listed on an emergency basis, the Minister may make such order as, in the opinion of the Minister, is necessary to control, restrict or prohibit activities that may adversely affect the endangered or threatened species, including activities that may adversely affect the critical habitat of the endangered or threatened species.
(2) Where the Minister makes an order pursuant to subsection (1) relating to critical habitat,
(a) subsections 14(1), (2) and (3) apply mutatis mutandis; and
(b) where critical habitat is on private land, Section 15 does not apply but the Minister shall give the landowner a copy of the order made pursuant to subsection (1) within fifteen days of the making of the order.
(3) The Minister shall revoke an order made pursuant to subsection (1) where the Minister is satisfied that adequate measures have been implemented in response to the emergency listing.
18 (1) Every person who contravenes subsection 11(1), 12(4) or 15(5) is guilty of an offence and is liable on summary conviction
(a) in the case of a corporation, to a fine not exceeding one hundred thousand dollars; or
(b) in the case of an individual, to a fine not exceeding fifty thousand dollars or to imprisonment for a term of not more than six months, or to both.
(2) Where a person is convicted of an offence under this Act a second or subsequent time, the person is, notwithstanding subsection (1), liable to a fine not exceeding double the amount set out in that subsection.
(3) Where an offence under this Act is committed or continued on more than one day, the person who committed the offence is liable to be convicted for a separate offence for each day on which the offence is committed or continued.
(4) A fine imposed for an offence involving more than one species may be calculated in respect of each one as though it had been the subject of a separate information.
(5) Where a person has been convicted of an offence under this Act and the court is satisfied that monetary benefits accrued to the person as a result of the commission of the offence,
(a) the court may order the person to pay an additional fine in an amount equal to the court's estimation of the amount of the monetary benefits; and
(b) the additional fine may exceed the maximum amount of any fine that may otherwise be imposed pursuant to this Act.
19 (1) In a prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused.
(2) Where a corporation commits an offence under this Act, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the violation of this Act is guilty of the offence and is liable to the punishment provided for the offence, whether or not the corporation has been prosecuted.
(3) Unless otherwise provided in this Act, no person shall be convicted of an offence under this Act if the person establishes that the person
(a) exercised all due diligence to prevent the commission of the offence; or
(b) reasonably and honestly believed in the existence of facts that, if true, would render the conduct of that person innocent.
20 (1) Where a person is convicted of an offence, the court may, in addition to any punishment imposed, order that any seized thing by means of or in relation to which the offence was committed, or any proceeds of its disposition, be forfeited to Her Majesty in right of the Province.
(2) Where the court does not order a forfeiture pursuant to subsection (1), the seized thing, or the proceeds of its disposition, shall be returned to its lawful owner or the person lawfully entitled to it where the possession of the thing would be lawful.
21 Where a fine is imposed on a person convicted of an offence, any seized thing, or any proceeds of its disposition, may be retained until the fine is paid or the thing may be sold in satisfaction of the fine and the proceeds applied, in whole or in part, in payment of the fine.
22 Where a person is convicted of an offence, the court may, in addition to any punishment imposed and having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing one or more of the following prohibitions, directions or requirements:
(a) prohibiting the person from doing any act or engaging in any activity that could, in the opinion of the court, result in the continuation or repetition of the offence;
(b) directing the person to take any action that the court considers appropriate to remedy or to prevent any adverse effects to any endangered or threatened species that results or may result from the commission of the offence;
(c) directing the person to pay to the Minister compensation in whole or in part, for the cost of any remedial or preventive action taken by or on behalf of the Minister as a result of the commission of the offence; (d) directing the person to post a bond or pay into court an amount of money that the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement pursuant to this Section.
23 Proceedings by way of summary conviction in respect of an offence may be commenced at any time within, but not later than, two years after the day on which evidence of the offence first came to the attention of a conservation officer or the Minister, whichever occurs first.
24 (1) The Governor in Council may make regulations
(a) defining any word or expression used but not defined in this Act;
(b) deemed necessary or advisable to carry out effectively the intent and purpose of this Act.
(2) The exercise by the Governor in Council of the authority contained in subsection (1) is regulations within the meaning of the Regulations Act.
25 (1) Section 19 of Chapter 504 of the Revised Statutes, 1989, the Wildlife Act, is repealed.
(2) Clause 113(1)(g) of Chapter 504 is repealed.
26 This Act comes into force on such day as the Governor in Council orders and declares by proclamation.