Regulations Amending the Special Economic Measures (Burma) Regulations: SOR/2018-135

Canada Gazette, Part II, Volume 152, Number 14

Registration

June 25, 2018

SPECIAL ECONOMIC MEASURES ACT

P.C. 2018-905 June 25, 2018

Whereas, the Governor in Council is of the opinion that the situation in Burma constitutes a grave breach of international peace and security that has resulted or is likely to result in a serious international crisis;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to subsections 4(1) footnote a, (1.1) footnote a, (2) and (3) of the Special Economic Measures Act footnote b, makes the annexed Regulations Amending the Special Economic Measures (Burma) Regulations.

Regulations Amending the Special Economic Measures (Burma) Regulations

Amendment

1 Part 2 of the schedule to the Special Economic Measures (Burma) Regulations footnote 1 is amended by adding the following after item 38:

Application Prior to Publication

2 For the purpose of paragraph 11(2)(a) of the Statutory Instruments Act, these Regulations apply before they are published in the Canada Gazette.

Coming into Force

3 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Government is of the opinion that the situation in Myanmar constitutes a grave breach of international peace and security that has resulted in a serious international crisis.

Background

On December 13, 2007, the Special Economic Measures (Burma) Regulations made pursuant to subsection 4(4) of the Special Economic Measures Act, came into force in order to respond to the gravity of the human rights and humanitarian situation in Myanmar which, in the opinion of the Government, constituted a grave breach of international peace and security that has or is likely to result in a serious international crisis.

On April 24, 2012, Canada amended the Regulations to provide some sanctions relief to Myanmar following positive steps towards reform in the country, while retaining an arms embargo and a prohibition on dealings (i.e. deal in any property, wherever situated, held by or on behalf of a designated person; provide any financial or related service to or for the benefit of a designated person; etc.) with designated Myanmar nationals connected with the Myanmar state.

The Rohingya, an ethnic minority traditionally living in Myanmar’s Rakhine state, have for decades been the subject of systematic discrimination and widespread human rights violations in Myanmar. According to the UN, the Rohingya are the world’s largest stateless community.

On August 25, 2017, border guard, police and army posts across northern Rakhine State were attacked by the Arakan Rohingya Salvation Army (ARSA), a militant Rohingya organization. In response to the attacks, Myanmar’s armed forces launched extensive “clearance” security operations in northern Rakhine. Since then, more than 720 000 Rohingya refugees have fled into neighbouring Bangladesh, triggering a large-scale humanitarian crisis. These refugees have joined hundreds of thousands of Rohingya already in Bangladesh following earlier waves of displacement; the Kutupalong camp in Bangladesh is now the largest refugee camp in the world.

Arriving in Bangladesh, the refugees gave accounts of how Rohingya civilians suffered human rights violations at the hands of the Myanmar Army such as infanticide, gang rape and other types of sexual violence, mass killings, as well as arson. Human Rights Watch has reported that 362 villages in Rakhine have been completely or partially destroyed by arson since August 25, 2017. Of these, at least 55 have been cleared using heavy machinery, leaving no trace of the landscape (houses, paddy fields, trees, etc.) that had been there previously.

Myanmar’s armed forces have officially confirmed 500 deaths, although estimates from other sources are in the thousands. Doctors Without Borders has estimated that close to 6 700 people were killed in the first month of the military operation in northern Rakhine. Myanmar authorities deny committing atrocities and say that only a few hundred ARSA “fighters” were killed.

Canada has expressed concern with respect to the role of the Myanmar armed forces in the security operations against the Rohingya, which has led to the current humanitarian crisis.

Following the release of the Report of Special Envoy to Myanmar, Bob Rae, in April 2018, the Government of Canada issued a Strategy to Respond to the Rohingya Crisis in Myanmar and Bangladesh on May 23, 2018. Along with other initiatives to address Special Envoy Rae’s recommendations, the Strategy noted that Canada will continue to work to identify additional individuals to sanction from Myanmar.

Objectives

  1. Signal Canada’s international condemnation of the situation in Myanmar.
  2. End impunity for the individuals responsible for, or complicit in, these acts.

Description

The Regulations Amending the Special Economic Measures (Burma) Regulations (the Regulations) amend the schedule to include seven Myanmar nationals who are high-level military officials. In that capacity, these individuals are directly linked to military operations launched in northern Rakhine State in August 2017, which resulted in the current humanitarian crisis, thereby constituting a continuation of the grave breach of international peace and security that has resulted in a serious international crisis.

The Regulations prohibit any person in Canada and any Canadian outside Canada from (a) dealing in any property, wherever situated, that is owned, held or controlled by a listed person or by a person acting on behalf of a listed person; (b) entering into or facilitating any transaction related to a dealing referred to in paragraph (a); (c) providing any financial or related service in respect of a dealing referred to in paragraph (a); (d) making any goods, wherever situated, available to a listed person or to a person acting on behalf of a listed person; or (e) providing any financial or related service to or for the benefit of a listed person. The Regulations further prohibit any person in Canada and any Canadian outside Canada from doing anything that causes, assists or promotes, or is intended to cause, assist or promote, any act or thing prohibited in the Regulations.

There are exceptions to the above-noted prohibitions, including

A separate Special Economic Measures (Burma) Permit Authorization Order made pursuant to subsection 4(4) of the Special Economic Measures Act authorizes the Minister of Foreign Affairs to issue to any person in Canada and any Canadian outside Canada a permit to carry out a specified activity or transaction, or any class of activity or transaction that is otherwise restricted or prohibited pursuant to the Regulations. A designated person may also apply to the Minister in writing to have their name removed from the Schedule of designated persons.

“One-for-One” Rule

The “One-for-One” Rule applies to the Regulations, as there are incremental administrative costs to business, for businesses seeking permits orders that would authorize them to carry out specified activities or transactions that are otherwise prohibited.

However, the administrative burden associated with the Regulations is exempted from the “One-for-One” Rule as the Regulations address unique, exceptional circumstances, namely the ongoing situation in Myanmar.

Small business lens

The Regulations potentially create additional administrative costs for small businesses seeking permits orders that would authorize them to carry out specified activities or transactions that are otherwise prohibited. However, the small business lens does not apply because there are no significant impacts.

Consultation

Public consultation on the Regulations would not be appropriate, as publicizing the name of the listed individual targeted by sanctions would result in asset flight prior to the coming into force of the Regulations.

Rationale

The seven individuals added to the Schedule of Regulations were directly linked to the military operations in northern Rakhine State in late August 2017, which included human rights violations against Rohingya civilians, such as infanticide, gang rape and other types of sexual violence, mass killings, as well as arson, at the hands of the Myanmar Army. These military operations further resulted in an ongoing humanitarian crisis, with more than 720 000 Rohingya refugees having fled into neighbouring Bangladesh. The listing signals Canada’s condemnation of individuals responsible for this international crisis and intent to end impunity for individuals who commit these acts. It also aligns with the European Union’s announcement to impose sanctions on the same list of individuals on June 25, 2018.

Implementation, enforcement and service standards

Canada’s sanction Regulations are enforced by the Royal Canadian Mounted Police and the Canada Border Services Agency. In accordance with section 8 of the Special Economic Measures Act (SEMA), every person who willfully contravenes the Special Economic Measures (Burma) Regulations under the SEMA is liable upon summary conviction to a fine of not more than $25,000 or to imprisonment for a term of not more than one year or to both, or upon conviction on indictment, to imprisonment for a term or not more than five years.

Contact

Rosaline Kwan
Global Affairs Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 343-203-1880
Email: Rosaline.Kwan@international.gc.ca