Regulations Implementing the United Nations Resolutions on Mali: SOR/2018-203

Canada Gazette, Part II, Volume 152, Number 22

Registration

October 10, 2018

UNITED NATIONS ACT

P.C. 2018-1250 October 4, 2018

Whereas the Security Council of the United Nations, acting under Article 41 of the Charter of the United Nations, adopted Resolution 2374 (2017) on September 5, 2017;

And whereas it appears to the Governor in Council to be necessary to make regulations for enabling the measures set out in that resolution to be effectively applied;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to section 2 of the United Nations Act ^{footnote a}, makes the annexed Regulations Implementing the United Nations Resolutions on Mali.

Regulations Implementing the United Nations Resolutions on Mali

Interpretation

Definitions

1 The following definitions apply in these Regulations.

Canadian means a citizen within the meaning of subsection 2(1) of the Citizenship Act, or an entity established, incorporated or continued by or under the laws of Canada or of a province. (Canadien)

Committee of the Security Council means the Committee of the Security Council of the United Nations established under paragraph 9 of Security Council Resolution 2374. (Comité du Conseil de sécurité)

designated person means a person that is designated by the Committee of the Security Council under paragraph 8 of Security Council Resolution 2374. (personne désignée)

entity includes a corporation, trust, partnership, fund, unincorporated association or organization or foreign state. (entité)

Mali means the Republic of Mali and includes

• (a) any of its political subdivisions;
• (b) its government and any of its departments or a government or department of its political subdivisions; and
• (c) any of its agencies or any agency of its political subdivisions. (Mali)

Minister means the Minister of Foreign Affairs. (ministre)

official means a person who

• (a) is or was employed in the service of Her Majesty in right of Canada or of a province;
• (b) occupies or occupied a position of responsibility in the service of Her Majesty in right of Canada or of a province; or
• (c) is or was engaged by or on behalf of Her Majesty in right of Canada or of a province. (fonctionnaire)

person means an individual or an entity. (personne)

Security Council means the Security Council of the United Nations. (Conseil de sécurité)

Security Council Resolution 2374 means Resolution 2374 (2017) of September 5, 2017, adopted by the Security Council. (résolution 2374 du Conseil de sécurité)

working day means a day that is not Saturday or a holiday. (jour ouvrable)

Application

Application

2 These Regulations are binding on Her Majesty in right of Canada or a province.

Prohibitions

Prohibited activities

3 (1) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly

• (a) deal in any property in Canada that is owned, held or controlled, directly or indirectly, by a designated person or by a person acting on behalf of or at the direction of a designated person;
• (b) enter into or facilitate any transaction related to a dealing referred to in paragraph (a);
• (c) provide any financial or related services in respect of a dealing referred to in paragraph (a);
• (d) make available any property or provide any financial or related services to a designated person, to a person acting on behalf of or at the direction of a designated person or to an entity that is owned, held or controlled, directly or indirectly, by a designated person; or
• (e) make available any property or provide any financial or related services for the benefit of any person or any entity referred to in paragraph (d).

Exception

(2) Subsection (1) does not prohibit the payment of interest or other earnings, if the payment is the result of a dealing or transaction that occurred before the person became a designated person. However, that payment then becomes subject to subsection (1).

Assisting in a prohibited activity

4 It is prohibited for any person in Canada or any Canadian outside Canada to knowingly do anything that causes, facilitates or assists in, or is intended to cause, facilitate or assist in, any activity prohibited by section 3.

Obligations

Duty to determine

5 The following entities must determine on a continuing basis whether they are in possession or control of property that is owned, held or controlled by or on behalf of a designated person:

• (a) authorized foreign banks, as defined in section 2 of the Bank Act, in respect of their business in Canada or banks regulated by that Act;
• (b) cooperative credit societies, savings and credit unions and caisses populaires regulated by a provincial Act and associations regulated by the Cooperative Credit Associations Act;
• (c) foreign companies, as defined in subsection 2(1) of the Insurance Companies Act, in respect of their insurance activities in Canada;
• (d) companies, provincial companies and societies, as those terms are defined in subsection 2(1) of the Insurance Companies Act;
• (e) fraternal benefit societies regulated by a provincial Act in respect of their insurance activities and insurance companies and other entities regulated by a provincial Act that are engaged in the business of insuring risks;
• (f) companies to which the Trust and Loan Companies Act applies;
• (g) trust companies regulated by a provincial Act;
• (h) loan companies regulated by a provincial Act;
• (i) entities that engage in any activity referred to in paragraph 5(h) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act if the activity involves the opening of an account for a client; and
• (j) entities authorized under provincial legislation to engage in the business of dealing in securities or to provide portfolio management or investment counselling services.

Duty to disclose — RCMP or CSIS

6 (1) Every person in Canada and every Canadian outside Canada and every entity referred to in section 5 must disclose without delay to the Commissioner of the Royal Canadian Mounted Police or to the Director of the Canadian Security Intelligence Service

• (a) the existence of property in their possession or control that they have reason to believe is owned, held or controlled by or on behalf of a designated person; and
• (b) any information about a transaction or proposed transaction in respect of property referred to in paragraph (a).

Immunity

(2) No proceedings under the United Nations Act and no civil proceedings lie against a person for a disclosure made in good faith under subsection (1).

Applications

Exemption

7 (1) A person that wishes to engage in any activity that is prohibited under these Regulations may, before doing so, apply to the Minister in writing for a certificate to exempt the activity from the application of these Regulations.

Certificate

(2) The Minister may issue the certificate if the Security Council did not intend that such an activity be prohibited or if the Security Council or the Committee of the Security Council has approved the activity in advance.

Exemption for property

8 (1) A person whose property is affected by the application of section 3 may apply to the Minister in writing for a certificate to exempt the property from the application of that section if the property is necessary for basic or extraordinary expenses or is subject to a lien, mortgage or security interest, to a hypothec or prior claim, to a charge or to a judicial, administrative or arbitral decision.

Certificate

(2) If it is established in accordance with Security Council Resolution 2374 that the property is necessary for basic or extraordinary expenses or is subject to a lien, mortgage or security interest, to a hypothec or prior claim, to a charge or to a judicial, administrative or arbitral decision, the Minister must issue a certificate within the following time periods:

• (a) within 15 working days after receiving the application, in the case of property that is necessary for basic expenses, if the Committee of the Security Council does not oppose the application;
• (b) within 30 working days after receiving the application, in the case of property that is necessary for extraordinary expenses, if the Committee of the Security Council approves the application; and
• (c) within 90 days after receiving the application, in the case of property that is subject to a lien, mortgage or security interest, to a hypothec or prior claim, to a charge or to a judicial, administrative or arbitral decision that
  • (i) was created or issued before the person became a designated person,
  • (ii) is not for the benefit of a designated person, and
  • (iii) has been brought to the attention of the Committee of the Security Council by the Minister.

Certificate — parties to contract

9 (1) A person who is a party to a contract or a gratuitous transfer may apply to the Minister in writing for a certificate to exempt property from the application of section 3 to permit them to receive payments or a transfer from a designated person or to permit a designated person to make payments or to carry out the transfer.

Certificate — time period

(2) The Minister must issue a certificate within 90 days after receiving the application and at least 10 working days after advising the Security Council of his or her intention to issue the certificate, if it is established that

• (a) the contract was entered into or the transfer carried out prior to any party becoming a designated person; and
• (b) the payments or transfer are not to be received, directly or indirectly, by a designated person, by a person acting on behalf of, or at the direction of, a designated person or by an entity that is owned, held or controlled, directly or indirectly, by a designated person.

Mistaken identity

10 (1) A person whose name is the same as or similar to the name of a designated person and that claims not to be that person may apply to the Minister in writing for a certificate stating that they are not that designated person.

Determination by Minister

(2) Within 45 days after receiving the application, the Minister must,

• (a) if it is established that the applicant is not the designated person, issue the certificate; or
• (b) if it is not so established, provide notice to the applicant of his or her determination.

Disclosure of Information

Disclosure by official

11 (1) An official may, for the purpose of responding to a request from the Security Council disclose personal information to the Minister.

Disclosure by Minister

(2) The Minister may, for the purpose of administering or enforcing these Regulations or fulfilling an obligation under a resolution of the Security Council, disclose personal information to the Security Council.

Legal Proceedings

Prohibition — legal proceedings

12 No legal proceedings lie in Canada at the instance of the Government of Mali, of any person in Mali, of a designated person or of any person claiming through or acting on behalf of any such person in connection with any contract or other dealing if its performance was prevented in any way by these Regulations.

Application Before Publication

Application before publication

13 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

Registration

14 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

On September 9, 2017, the United Nations Security Council (the Security Council) adopted Resolution 2374 (2017), under Chapter VII of the Charter of the United Nations, creating a sanctions regime targeting actors derailing the Agreement for Peace and Reconciliation in Mali, signed in 2015, by that country’s Government and both the Plateforme des mouvements d’autodéfense (the Plateforme) and the Coordination des Mouvements de l’Azawad (CMA) coalitions of armed groups. The Security Council also decided to impose a travel ban on, and freeze the assets of, designated individuals and entities actively stymieing progress in implementing the peace process.

These Regulations implement the asset freeze and dealings prohibition imposed by the Security Council into Canadian domestic law under section 2 of the United Nations Act. The travel ban is implemented in Canadian domestic law through the application of the existing provisions of the Immigration and Refugee Protection Act.

Background

The current crisis in Mali was set in motion by three events: the return to the country in 2011 of Tuareg fighters that had fought for Muammar Gaddafi in the Libyan revolution; the 2012 civil war in Northern Mali between the government and the Tuareg Mouvement national pour la libération de l’Azawad (MNLA); and the subsequent military coup and overthrow of the government over their handling of the crisis. Following the coup, the MNLA overran the three largest cities in the North (Kidal, Gao, Timbuktu) and declared the independence of Azawad. Terrorist groups, such as the Salafist movement Ansar Dine (and smaller groups, Al-Qaeda in the Islamic Maghreb [AQIM], and the Movement for Oneness and Jihad in West Africa [MUJAO]), initially backed the MNLA, but then took advantage of the absence of government to push the Tuareg rebels out of the main cities in the North by mid-July 2012 and establish an authoritarian regime imposing strict Sharia law.

In December 2012, the United Nations Security Council Resolution (UNSCR) 2085 (2012) authorized the deployment of the African-led International Support Mission to Mali (MISMA). In January 2013, at the invitation of the Malian government, France launched the counterterrorism Operation Serval. The aim of the operation was to oust Islamic militants from the North of Mali, who had begun a push toward the southern part of the country. By mid-April 2013, most towns in the north had been recaptured from the terrorist groups and Operation Serval was converted to Operation Barkhane on August 1, 2014, with a counter-terrorism mandate in the expanse of the Sahel (Burkina Faso, Chad, Mali, Mauritania, Niger). MISMA was replaced in April 2013 by the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) through UNSCR 2100 (2013). MINUSMA’s mandate has been renewed yearly through UNSCR 2164 (2014), 2227 (2015), 2295 (2016), and 2364 (2017). The mission’s strategic priority is to support the implementation of the Agreement for Peace and Reconciliation in Mali (the Agreement), signed in 2015 by the Malian Government and the two main armed groups — the pro-government Plateforme and the rebel CMA. In 2017, the G5 Sahel countries (Mauritania, Mali, Burkina Faso, Niger, and Chad) announced plans to form a regional Joint Force to complement MINUSMA and the French Operation Barkhane Forces in combatting terrorist and criminal groups. The G5 Sahel Force was welcomed by the Security Council through Resolution 2359 (2017).

National reconciliation and stabilization remain critical; however, there has been very little progress in the implementation of the Agreement’s provisions. Following the end of the Agreement’s two-year interim period in June 2017, multiple ceasefire violations have been reported between the two signatory armed groups (the CMA and the Groupe autodéfense touareg Imghad et alliés [GATIA], a member of the Plateforme) from July to September 2017, in the Kidal and Menaka regions. This has resulted in continued deterioration of the security environment.

In light of these ongoing failures and violations of the Agreement, on September 5, 2017, the Security Council adopted unanimously Resolution 2374 (2017) to impose sanctions targeting actors derailing the peace process in Mali. This resolution was adopted stressing the primary responsibility of the Government of Mali, the Plateforme and the CMA armed groups to accelerate the implementation of the Agreement in order to improve the security situation across Mali and to forestall attempts by terrorist groups to derail the implementation of the Agreement. The sanctions impose a travel ban, asset freeze and dealings prohibition on designated individuals and entities actively preventing progress in implementing the Agreement for Peace and Reconciliation in Mali. The Resolution also creates a committee whose mandate is to identify the individuals and entities to be targeted by the sanctions, as well as a panel of experts to examine alleged violations and support the work of the committee.

As a Member State of the United Nations and pursuant to Article 25 of the Charter of the United Nations, Canada is legally obligated to implement binding decisions of the Security Council.

Objectives

The Regulations Implementing the United Nations Resolutions on Mali (the Regulations) are necessary for Canada to fulfill its international legal obligation to implement the applicable decisions of the Security Council set out in Resolution 2374 (2017). The Regulations will implement the asset freeze and dealings prohibition imposed by the Security Council into Canadian domestic law under section 2 of the United Nations Act. The travel ban is implemented in Canadian domestic law through the application of the existing provisions of the Immigration and Refugee Protection Act.

Description

In accordance with UNSCR 2374 (2017), the Regulations prohibit persons in Canada and Canadians outside Canada from knowingly dealing in (e.g. buy, sell, borrow, encumber, or otherwise transact) the property of a designated person including providing any financial or other related services in respect of such property. These measures serve to freeze the property of persons designated by the Security Council. All of these restrictions apply equally to dealings with persons acting on behalf of or at the direction of designated persons, or to entities owned or controlled by designated persons. In addition, the Regulations will make it illegal to make any property or financial or other related services available to or for the benefit of a designated person.

These measures apply to those persons designated by the committee created by UNSCR 2374 (2017) as responsible for or complicit in, or having engaged in, directly or indirectly, the list of actions as determined by paragraph 8 of Resolution 2374 (2017), including

• engaging in hostilities in violation of the Agreement or to obstruct the Agreement;
• involvement in planning, directing, sponsoring, or conducting attacks against (i) various entities referenced in the Agreement; (ii) MINUSMA peacekeepers and other UN and associated personnel, including the panel of experts; and (iii) international security presences, including the G5 Sahel Joint Force countries, European Union Missions and French Forces;
• obstructing the delivery of humanitarian assistance in Mali;
• planning, directing, or committing acts in Mali that violate international human rights law or international humanitarian law, as applicable, or that constitute human rights abuses or violations; and
• use or recruitment of children by armed groups or armed forces in violation of applicable international law.

In Canada, implementation of travel restrictions on designated persons mandated under Resolution 2374 (2017) is ensured under the Immigration and Refugee Protection Act and its regulations. The United Nations Act constitutes the appropriate legislative authority to implement into Canadian law, through regulation, the asset freezes and dealings prohibitions mandated by the Security Council.

The UNSCR 2374 (2017) is available at http://unscr.com/en/resolutions/doc/2374.

“One-for-One” Rule

These Regulations are carved out from the “One-for-One” Rule, as they implement non-discretionary international obligations.

Small business lens

The small business lens does not apply to this proposal, as there are no costs (or insignificant costs) on small business.

Consultation

There has been no consultation, as this obligation is imposed by a UNSCR. Such obligations are routinely implemented in Canada by regulations made pursuant to the United Nations Act. Canada indicated that it would implement all measures taken by the Security Council under Chapter VII of the Charter of the United Nations when it became a member state of the United Nations in 1945, whereas Article 25 of Chapter V states that “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the . . . Charter.”

Rationale

The Regulations make Canada compliant with its obligations under the Charter of the United Nations.

Implementation, enforcement and service standards

Canada’s sanctions regulations are enforced by the Royal Canadian Mounted Police and the Canada Border Services Agency. Every person who contravenes the Regulations is liable, upon conviction, to the punishments set out in section 3 of the United Nations Act (i.e. on summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both; or, on conviction on indictment, to imprisonment for a term of not more than 10 years).

Contact

Jean-Bernard Parenteau
Director
West and Central Africa Relations Division
Global Affairs Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 343-203-5028
Email: jean-bernard.parenteau@international.gc.ca