International Boundary Waters Treaty Act

This Act may be cited as the International Boundary Waters Treaty Act.

The treaty relating to the boundary waters and to questions arising along the boundary between Canada and the United States made between His Majesty, King Edward VII, and the United States, signed at Washington on January 11, 1909, and the protocol of May 5, 1910, in Schedule 1, are hereby confirmed and sanctioned.

The laws of Canada and of the provinces are hereby amended and altered so as to permit, authorize and sanction the performance of the obligations undertaken by His Majesty in and under the treaty, and so as to sanction, confer and impose the various rights, duties and disabilities intended by the treaty to be conferred or imposed or to exist within Canada.

Any interference with or diversion from their natural channel of any waters in Canada, which in their natural channels would flow across the boundary between Canada and the United States or into boundary waters, as defined in the treaty, resulting in any injury on the United States side of the boundary, gives the same rights and entitles the injured parties to the same legal remedies as if the injury took place in that part of Canada where the interference or diversion occurs.

Subsection (1) does not apply to cases existing on January 11, 1909 or to cases expressly covered by special agreement between Her Majesty and the Government of the United States.

The Federal Court has jurisdiction at the suit of any injured party or person who claims under this Act in all cases in which it is sought to enforce or determine as against any person any right or obligation arising or claimed under or by virtue of this Act.

The International Joint Commission, when appointed and constituted pursuant to the treaty, shall have power, when holding joint sessions in Canada, to take evidence on oath and to compel the attendance of witnesses by application to a judge of a superior court of the province in which the session is held, and that judge is hereby authorized and directed to make all orders and issue all processes necessary and appropriate to that end.

The members of the Canadian section of the International Joint Commission shall be paid such salaries as are fixed by the Governor in Council.

A Secretary of the Canadian section of the International Joint Commission and such other officers, clerks and employees as are required for the purposes of this Act may be employed under the Public Service Employment Act.

This Act shall be administered by the Minister of Foreign Affairs.

The definitions in this section apply in sections 11 to 42.

analyst means a person who is designated under section 20.1 to assist an inspector to verify compliance with this Act. (analyste)

boundary waters means boundary waters as defined in the treaty. (eaux limitrophes)

bulk removal means the removal of water from boundary or transboundary waters and the taking of that water, whether it has been treated or not, outside the Canadian portion of the water basin — set out in Schedule 2 — in which the waters are located Bulk removal does not include the taking of a manufactured product that contains water, including water and other beverages in bottles or other containers, outside a water basin. (captage massif)

by any means of diversion, including by pipeline, canal, tunnel, aqueduct or channel; or

by any other means by which more than 50 000 L of water are taken outside the water basin per day.

inspector means a person who is designated under section 20.1 to verify compliance with this Act. (inspecteur)

licence means a licence issued under section 16. (licence)

Minister means the Minister of Foreign Affairs. (ministre)

non-commercial project means a project involving bulk removal in which no one is required to pay for the water that is removed. (projet non commercial)

transboundary waters means those waters that, in their natural channels, flow across the international boundary between Canada and the United States, including those set out in Schedule 3. (eaux transfrontalières)

Except in accordance with a licence, no person shall use, obstruct or divert boundary waters, either temporarily or permanently, in a manner that affects, or is likely to affect, in any way the natural level or flow of the boundary waters on the other side of the international boundary.

Subsection (1) does not apply in respect of the ordinary use of waters for domestic or sanitary purposes, or the exceptions specified in the regulations.

Except in accordance with a licence, no person shall construct or maintain, either temporarily or permanently, any remedial or protective work or any dam or other obstruction in waters flowing from boundary waters, or in downstream waters of rivers flowing across the international boundary, the effect of which is or is likely to raise in any way the natural level of waters on the other side of the international boundary.

Subsection (1) does not apply in respect of the exceptions specified in the regulations.

The purpose of this section is to prevent the risk of environmental harm resulting from bulk removal.

Despite section 11, the bulk removal of boundary waters is prohibited.

Despite section 12, the bulk removal of transboundary waters is prohibited.

For the purposes of subsections (1) and (2) and the application of the treaty, bulk removal is deemed, given its cumulative effects on boundary waters and on transboundary waters that flow to the United States, to affect the natural level or flow of those waters on the other side of the international boundary.

Subsections (1) and (2) do not apply in respect of boundary waters or transboundary waters that are used

in a vehicle, including a vessel, aircraft or train,

as ballast,

for the operation of the vehicle, or

for people, animals or goods on or in the vehicle; or

in a non-commercial project on a short-term basis for firefighting or humanitarian purposes.

Sections 11 to 13 are binding on Her Majesty in right of Canada or a province.

Sections 11, 12 and 13 do not apply in respect of uses, obstructions or diversions in existence immediately before the respective coming into force of those sections, but those sections do apply in respect of such uses, obstructions or diversions if significant changes occur to them after their respective coming into force.

Subject to the regulations, the Minister may, on application, issue, renew or amend a licence to do any activity referred to in subsection 11(1) or 12(1), subject to any terms or conditions the Minister considers appropriate.

A licence is not transferable except with the consent of the Minister.

The Minister may suspend or revoke a licence whenever the Minister believes on reasonable grounds that the licensee has contravened this Act or a condition of the licence, but the licensee must first be given notice in writing by the Minister of the reasons for the suspension or revocation and a reasonable opportunity to make representations to the Minister.

The Minister may also suspend or revoke a licence with the consent of, or on application by, the licensee.

If a person contravenes subsection 11(1), 12(1) or 13(1) or (2), the Minister may

order the person to remove or alter any obstruction or work to which the contravention relates; or

order the person to refrain from proceeding with any construction or other work, or to cease the use or diversion, to which the contravention relates.

If the person fails to comply with an order made under paragraph (1)(a) or (b), the Minister may remove or alter anything referred to in paragraph (1)(a) or used in relation to any activity referred to in paragraph (1)(b) or order it to be forfeited to Her Majesty in right of Canada.

Anything forfeited under subsection (2) may be removed, destroyed or otherwise disposed of as the Minister directs.

The Minister’s cost of removing or altering anything under subsection (2) and the costs of and incidental to the removal, destruction or disposition under subsection (3) of anything forfeited, less any sum that may be realized from its disposition, are recoverable by Her Majesty in right of Canada from the person who contravened the order made under subsection (1) as a debt due to Her Majesty in any court of competent jurisdiction.

The Minister may, with the approval of the Governor in Council, enter into an agreement or arrangement with the government of one or more provinces respecting the activities referred to in sections 11 to 13.

For the purposes of the administration and enforcement of this Act, the Minister may designate persons or classes of persons to exercise powers in relation to any matter referred to in the designation, including, with the approval of a provincial government, persons or classes of persons who are authorized by that government to exercise powers and carry out functions with respect to bodies of water in the province.

An inspector may, for the purpose of verifying compliance with this Act, enter a place, including a vehicle, in which they have reasonable grounds to believe an object to which this Act applies is located or an activity regulated by this Act is taking place.

The inspector may, for that purpose,

examine anything in the place;

use any means of communication in the place or cause it to be used;

use any computer system in the place, or cause it to be used, to examine data contained in or available to it;

prepare a document, or cause one to be prepared, based on the data;

use any copying equipment in the place, or cause it to be used;

remove anything from the place for examination or copying;

direct any person to put any machinery, vehicle or equipment in the place into operation or to cease operating it;

prohibit or limit access to all or part of the place;

take samples of anything in the place; and

conduct tests on, or take measurements of, anything in the place.

If the place is a dwelling-house, the inspector may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (4).

On ex parte application, a justice of the peace may issue a warrant authorizing an inspector who is named in it to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

the dwelling-house is a place referred to in subsection (1);

entry to the dwelling-house is necessary to verify compliance with this Act; and

entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.

In executing a warrant to enter a dwelling-house, an inspector may use force only if the use of force has been specifically authorized in the warrant and the inspector is accompanied by a peace officer.

On ex parte application, a justice of the peace may issue a warrant authorizing an inspector who is named in it to enter a place other than a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

the place is a place referred to in subsection (1);

entry to the place is necessary to verify compliance with this Act;

entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused, that consent to entry cannot be obtained from the occupant, that entry cannot be effected without the use of force or that the place is abandoned; and

all reasonable attempts were made to notify the owner, operator or person in charge of the place.

The justice may waive the requirement to give notice under paragraph (6)(d) if he or she is satisfied that attempts to give the notice would be unsuccessful because the owner, operator or person in charge is absent from the justice’s jurisdiction or that it is not in the public interest to give the notice.

For the purpose of verifying compliance with this Act, an inspector may, at any reasonable time, direct that any vehicle be stopped — or be moved, by the route and in the manner that they specify, to a specified place — and they may, for a reasonable time, detain that vehicle.

An analyst may, at an inspector’s request, accompany them into a place for the purpose of assisting them to verify compliance with this Act.

The analyst may, for that purpose,

examine anything in the place;

take samples of anything in the place; and

conduct tests on, or take measurements of, anything in the place.

An inspector or analyst may dispose of a sample taken in the place in any manner that they consider appropriate.

For the purpose of gaining entry to a place referred to in subsection 20.2(1), an inspector and any analyst accompanying them may enter private property and pass through it, and are not liable for doing so. For greater certainty, no person has a right to object to that use of the property and no warrant is required for the entry, unless the property is a dwelling-house.

A person may, at the inspector’s request, accompany the inspector to assist them to gain entry to the place referred to in subsection 20.2(1) and is not liable for doing so.

The owner or person in charge of the place and every person in the place shall give all assistance that is reasonably required to enable the inspector to verify compliance with this Act and shall provide any documents, data or information that is reasonably required for that purpose.

The Minister shall provide every inspector and analyst with a certificate of designation and, on entering a place, they shall produce the certificate to the person in charge of the place on request.

An inspector and an analyst are not personally liable for anything they do or omit to do in good faith in carrying out their functions.

The Minister may, for the purpose of verifying compliance with this Act, by registered letter or by a demand served personally, require any person, within any reasonable time and in any reasonable manner that may be stipulated in the letter or demand,

to produce at a place specified by the Minister any sample taken or any document; or

to conduct any tests or take any measurements or samples there.

Any person who is required to do anything under subsection (1) shall, despite any law to the contrary, comply with the requirement.

The Governor in Council may, on the recommendation of the Minister, make regulations

specifying what constitutes a use, obstruction, diversion or work for the purposes of this Act;

defining, for the purposes of this Act, any word or expression used in sections 11 to 42 that is not defined in this Act;

[Repealed, 2013, c. 12, s. 8]

specifying exceptions to the application of subsections 11(1) and 12(1);

prescribing classes of licences and determining the persons who are eligible to hold licences of any particular class;

respecting applications for licences, including the form of the applications, the information to be provided in respect of the applications and the manner in which the applications are to be filed, processed and disposed of;

respecting the form of licences and the information they must include and requiring licensees to publish or otherwise make them available for public inspection;

prescribing fees, or the manner of calculating fees, in respect of licences and prescribing the manner in which the fees are to be paid;

prescribing the duration of licences;

respecting the renewal and amendment of licences;

prescribing uses, obstructions, diversions and works for which a licence may not be issued; and

[Repealed, 2013, c. 12, s. 8]

generally for carrying out the purposes and provisions of this Act.

For greater certainty, regulations made under paragraph (1)(a) do not restrict the ordinary meaning of the words “use”, “obstruction”, “diversion” or “work”.

The Governor in Council may, by order, on the Minister’s recommendation, amend Schedule 3 by adding, deleting or amending the name of any transboundary waters.

Before recommending that Schedule 3 be amended, the Minister is to consult with the appropriate Minister of the province where the transboundary waters are located.

[Repealed, 2024, c. 30, s. 3]

Obstructing a person designated under section 20.1 or hindering them in carrying out their functions under this Act is prohibited.

It is prohibited to, with respect to any matter related to this Act, knowingly

provide any person with false or misleading information, results or samples; or

file a document that contains false or misleading information.

It is prohibited to, with respect to any matter related to this Act, negligently

provide any person with false or misleading information, results or samples; or

file a document that contains false or misleading information.

Every person commits an offence who contravenes

subsection 11(1), 12(1) or 13(1) or (2) or section 22;

an order made by the Minister under section 19;

subsection 23(1); or

an order made by a court under this Act.

Every individual who commits an offence under subsection (1) is liable

on conviction on indictment

for a first offence, to a fine of not less than $15,000 and not more than $1,000,000 or to imprisonment for a term of not more than five years, or to both, and

for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000 or to imprisonment for a term of not more than five years, or to both; or

on summary conviction

for a first offence, to a fine of not less than $5,000 and not more than $300,000 or to imprisonment for a term of not more than six months, or to both, and

for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000 or to imprisonment for a term of not more than six months, or to both.

Every person, other than an individual or a corporation referred to in subsection (4), who commits an offence under subsection (1) is liable

on conviction on indictment

for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and

for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000; or

on summary conviction

for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and

for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000.

Every corporation that commits an offence under subsection (1) and that the court determines under section 29 to be a small revenue corporation is liable

on conviction on indictment

for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and

for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or

on summary conviction

for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and

for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.

Every person commits an offence who contravenes any provision of the Act or the regulations, other than a provision the contravention of which is an offence under subsection 24(1).

Every individual who commits an offence under subsection (1) is liable

on conviction on indictment

for a first offence, to a fine of not more than $100,000, and

for a second or subsequent offence, to a fine of not more than $200,000; or

on summary conviction

for a first offence, to a fine of not more than $25,000, and

for a second or subsequent offence, to a fine of not more than $50,000.

Every person, other than an individual or a corporation referred to in subsection (4), that commits an offence under subsection (1) is liable

on conviction on indictment

for a first offence, to a fine of not more than $500,000, and

for a second or subsequent offence, to a fine of not more than $1,000,000; or

on summary conviction

for a first offence, to a fine of not more than $250,000, and

for a second or subsequent offence, to a fine of not more than $500,000.

Every corporation that commits an offence under subsection (1) and that the court determines under section 29 to be a small revenue corporation is liable

on conviction on indictment

for a first offence, to a fine of not more than $250,000, and

for a second or subsequent offence, to a fine of not more than $500,000; or

on summary conviction

for a first offence, to a fine of not more than $50,000, and

for a second or subsequent offence, to a fine of not more than $100,000.

A person is not to be convicted of an offence under paragraph 24(1)(a), (b) or (d) or subsection 25(1) if they establish that they exercised due diligence to prevent the commission of the offence.

If an offence under this Act is committed or continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued.

For the purposes of sections 24 and 25, a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted — under any Act of Parliament, or any Act of the legislature of a province, that relates to water resource management — of a substantially similar offence.

Subsection (1) applies only to previous convictions on indictment, to previous convictions on summary conviction, and to previous convictions under any similar procedure under any Act of the legislature of a province.

For the purposes of sections 24 and 25, a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000.

The court may impose a fine that is less than the minimum amount provided for in any of subsections 24(2) to (4) if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in the subsection.

If a person is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence, the person acquired any property, benefit or advantage, the court shall order the person to pay an additional fine in an amount equal to the court’s estimation of the value of that property, benefit or advantage. The additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.

If a corporation that has shareholders has been convicted of an offence under this Act, the court shall make an order directing the corporation to notify its shareholders, in the manner and within the time directed by the court, of the facts relating to the commission of the offence and of the details of the punishment imposed.

If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the penalty provided for by this Act for an individual in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted or convicted.

In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by the accused’s employee acting within the scope of their employment or the accused’s agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary is identified or has been prosecuted for the offence, unless the accused establishes that the accused exercised due diligence to prevent the commission of the offence.

The fundamental purpose of sentencing for offences under this Act is to contribute to respect for this Act through the imposition of just sanctions that have as their objectives

to deter the offender and other persons from committing offences under this Act;

to denounce unlawful conduct that causes damage or risk of damage to water resources; and

to restore the environment harmed by the offence.

In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is convicted of an offence under this Act:

the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and

the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.

The aggravating factors are the following:

the offence caused damage or risk of damage to the environment;

the offence caused damage or risk of damage to any unique, particularly important or vulnerable environment;

the damage caused by the offence is extensive, persistent or irreparable;