• (b.01) accountability in accordance with the “polluter pays” principle;

Marginal note:Delegation

• 4.1 (1) The National Energy Board may delegate any of its powers under section 5, 5.02, 5.03, 5.11, 5.12, 26.1 or 27 to any person, and the person shall exercise those powers in accordance with the terms of the delegation.

COST RECOVERY

Marginal note:Regulations respecting fees, etc.

• 4.2 (1) The Governor in Council may make regulations

  • (a) respecting the fees or charges, or the method of calculating the fees or charges, to be paid for the provision, by the National Energy Board or the Minister, of a service or product under this Act;

  • (b) respecting the fees or charges, or the method of calculating the fees or charges, in respect of any of the National Energy Board’s or the Minister’s activities under or related to this Act or under any other Act of Parliament, that are to be paid by

    • (i) a person who makes an application for an authorization under paragraph 5(1)(b) or an application under subsection 5.1(2), or

    • (ii) the holder of an operating licence or authorization issued under section 5; and

  • (c) respecting the refund of all or part of any fee or charge referred to in paragraph (a) or (b), or the method of calculating that refund.

• Marginal note:Amounts not to exceed cost

  (2) The amounts of the fees or charges referred to in paragraph (1)(a) shall not exceed the cost of providing the services or products.

• Marginal note:Amounts not to exceed cost

  (3) The amounts of the fees or charges referred to in paragraph (1)(b) shall not exceed the cost of performing the activities under or related to this Act or under any other Act of Parliament.

Marginal note:Timing

• 5.001 (1) If an application for an authorization under subsection 5(1) is made with respect to a work or activity proposed to be carried on in whole or in part in any area in respect of which the Minister of Indian Affairs and Northern Development has administrative responsibility for natural resources, the National Energy Board shall, within 18 months after the day on which the applicant has, in the Board’s opinion, provided a complete application, either issue the authorization to the applicant under that subsection or notify the applicant in writing of its decision not to issue the authorization.

• Marginal note:Extensions

  (2) The Minister may, by order, extend the period referred to in subsection (1) by a maximum of three months. The Governor in Council may, on the recommendation of the Minister, by order, further extend that period by any additional period or periods of time.

• Marginal note:Environmental assessment

  (3) If the application for an authorization is in respect of a designated project, as defined in subsection 2(1) of the Canadian Environmental Assessment Act, 2012, for which the National Energy Board is the responsible authority, as defined in that subsection, the Board shall issue the decision statement referred to in section 54 of that Act in respect of the designated project within the period referred to in subsection (1) or, if the period is extended under subsection (2), within that extended period.

• Marginal note:Excluded period

  (4) If the National Energy Board requires the applicant to provide information or undertake a study with respect to the work or activity, the period that is taken by the applicant, in the Board’s opinion, to comply with the requirement is not included in the calculation of the period referred to in subsection (1) or, if the period is extended under subsection (2), within that extended period.

• Marginal note:Public notice of excluded period

  (5) The National Energy Board shall, without delay, make public the dates on which the period referred to in subsection (4) begins and ends.

Marginal note:Participant funding program

5.002 The National Energy Board may establish a participant funding program to facilitate the participation of the public in the environmental assessment, as defined in subsection 2(1) of the Canadian Environmental Assessment Act, 2012, of any designated project, as defined in that subsection, for which the Board is the responsible authority, as defined in that subsection, that meets the condition set out in paragraph 58(1)(a) of that Act and that is the subject of an application for an authorization under subsection 5(1).

Financial Requirements

Marginal note:Compliance with certain provisions

5.03 The National Energy Board shall, before issuing an authorization for a work or activity referred to in paragraph 5(1)(b), ensure that the applicant has complied with the requirements of subsections 26.1(1) or (2) and 27(1) or (1.01) in respect of that work or activity.

• Marginal note:Transboundary pool or field

  (7) The definitions in sections 29 and 48.15 apply in subsections (8) to (12).

• Marginal note:Approval subject to agreement and consent

  (8) Despite subsection (4), a development plan submitted for approval in respect of a work or activity in a transboundary pool or field that is the subject of a joint exploitation agreement is not to be approved by the National Energy Board unless the appropriate regulator has agreed to its content. That approval is subject to the consent of the Governor in Council in relation to Part I of the development plan and any requirements that the Board and regulator have agreed are appropriate or that may be prescribed.

• Marginal note:Disagreement

  (9) In the case of a disagreement about the content of the plan submitted for approval, or any of the requirements for approval referred to in subsection (8), the Minister, on the National Energy Board’s behalf, or the regulator may refer the matter to an expert in accordance with section 48.27.

• Marginal note:Submissions in relation to Part I

  (10) Any submissions to the expert by the Minister on the National Energy Board’s behalf regarding Part I of the development plan are subject to the prior consent of the Governor in Council.

• Marginal note:Expert’s decision

  (11) The expert’s decision is deemed to be approval by the National Energy Board of the plan, and Part I of that plan is deemed to have been consented to by the Governor in Council under subsection (8).

• Marginal note:Application of certain provisions

  (12) Subsections (7) to (11) apply, with any necessary modifications, with respect to a proposed amendment to a development plan to which a work or activity in a transboundary pool or field or to any requirement that the approval of the plan is subject.

• Marginal note:Transboundary pool or field

  (4) The definitions in sections 29 and 48.15 apply in subsections (5) and (6).

• Marginal note:Approval subject to agreement

  (5) A benefits plan submitted for approval in respect of a work or activity in a transboundary pool or field that is the subject of a joint exploitation agreement is not to be approved under subsection (2) unless the Minister and the appropriate regulator have agreed to its content.

• Marginal note:Disagreement — Minister and regulator

  (6) The Minister or the regulator may, if they disagree about the content of the plan submitted for approval, refer the matter to an expert in accordance with section 48.27. The expert’s decision is deemed to be approval by the Minister of the plan.

Marginal note:Board guidelines and interpretation notes

• 5.3 (1) The National Energy Board may issue and publish, in any manner the Board considers appropriate, guidelines and interpretation notes with respect to the application and administration of section 5, 5.1 and 13.02 and subsection 27(1.01) and any regulations made under section 4.2, 13.17 and 14.

Marginal note:Public hearings

5.331 The National Energy Board may conduct a public hearing in relation to the exercise of any of its powers or the performance of any of its duties and functions under this Act.

Marginal note:Confidentiality

5.34 At any public hearing conducted under section 5.331 or in any proceedings with respect to Part 0.1, the National Energy Board may take any measures and make any order that it considers necessary to ensure the confidentiality of any information likely to be disclosed at the hearing or in the proceedings if the Board is satisfied that

• (a) disclosure of the information could reasonably be expected to result in a material loss or gain to a person directly affected by the hearing or proceedings, or to prejudice the person’s competitive position, and the potential harm resulting from the disclosure outweighs the public interest in making the disclosure; or

• (b) the information is financial, commercial, scientific or technical information that is confidential information supplied to the Board and

  • (i) the information has been consistently treated as confidential information by a person directly affected by the hearing or proceedings, and

  • (ii) the person’s interest in confidentiality outweighs the public interest in its disclosure.

Marginal note:Confidentiality — security

5.35 At any public hearing conducted under section 5.331 or in respect of any order, or in any proceedings, with respect to Part 0.1, the National Energy Board may take any measures and make any order that it considers necessary to ensure the confidentiality of information that is likely to be disclosed at the hearing or in the proceedings or is contained in the order if the Board is satisfied that

• (a) there is a real and substantial risk that disclosure of the information will impair the security of pipelines, buildings, installations, vessels, vehicles, aircraft or systems, including computer or communication systems, or methods employed to protect them; and

• (b) the need to prevent disclosure of the information outweighs the public interest in its disclosure.

Marginal note:Exception

5.351 The National Energy Board shall not take any measures or make any order under section 5.34 or 5.35 in respect of information or documentation referred to in paragraphs 101(7)(a) to (e) and (i) of the Canada Petroleum Resources Act.

Marginal note:Amendments to Schedule 1 or 2

• 14.1 (1) The Governor in Council may, by order, amend Schedule 1 or 2 to add, amend or remove a reference to a federal Act or regulation, or to a provision of a federal Act or regulation.

• Marginal note:Recommendation

  (2) The order shall be made on the recommendation of the Minister and every minister responsible for the administration of the provision.

Marginal note:List of spill-treating agents

14.2 The Minister of the Environment may, by regulation, establish a list of spill-treating agents.

Definition of “spill”

• 24. (1) In sections 25 to 28, “spill” means a discharge, emission or escape of oil or gas, other than one that is authorized under subsection 25.4(1), the regulations or any other federal law. It does not include a discharge from a vessel to which Part 8 or 9 of the Canada Shipping Act, 2001 applies or from a ship to which Part 6 of the Marine Liability Act applies.

• Definition of “actual loss or damage”

  (2) In section 26, “actual loss or damage” includes loss of income, including future income, and, with respect to any Aboriginal peoples of Canada, loss of hunting, fishing and gathering opportunities. It does not include loss of income recoverable under subsection 42(3) of the Fisheries Act.

• Definition of “debris”

  (3) In sections 26 to 27 and 28, “debris” means any installation or structure that was put in place in the course of any work or activity required to be authorized under paragraph 5(1)(b) and that has been abandoned without an authorization that may be required by or under this Act, or any material that has broken away or been jettisoned or displaced in the course of any of that work or activity.

Marginal note:Canadian Environmental Protection Act, 1999

25.2 Section 123 and subsections 124(1) to (3) of the Canadian Environmental Protection Act, 1999 do not apply in respect of a spill-treating agent.

Marginal note:Fisheries Act — civil liability

25.3 For the purpose of section 42 of the Fisheries Act, if subsection 36(3) of that Act would have been contravened but for subsection 25.1(1),

• (a) subsection 36(3) of that Act is deemed to apply in respect of the deposit of the spill-treating agent;

• (b) the holder of the authorization referred to in paragraph 25.1(1)(a) is deemed to be the only person referred to in paragraph 42(1)(a) of that Act; and

• (c) those persons who caused or contributed to the spill are deemed to be the only persons referred to in paragraph 42(1)(b) of that Act.

Marginal note:Scientific research

• 25.4 (1) For the purpose of a particular research project pertaining to the use of a spill-treating agent in mitigating the environmental impacts of a spill, the Minister of the Environment may authorize, and establish conditions for, the deposit of a spill-treating agent, oil or oil surrogate in the internal waters of Canada not within a province, the territorial sea of Canada or the waters superjacent to the continental shelf of Canada.

• Marginal note:Oil surrogate

  (2) The Minister of the Environment shall not authorize the deposit of an oil surrogate unless that Minister determines that the oil surrogate poses fewer safety, health or environmental risks than oil.

• Marginal note:Non-application

  (3) If the conditions set out in the authorization are met, the provisions referred to in section 25.2 and Schedules 1 and 2 do not apply in respect of the spill-treating agent, oil and oil surrogate required for the research project.

Marginal note:Financial resources — certain activities

• 26.1 (1) An applicant for an authorization under paragraph 5(1)(b) for the drilling for or development or production of oil or gas shall provide proof, in the prescribed form and manner, that it has the financial resources necessary to pay the greatest of the amounts of the limits of liability referred to in subsection 26(2.2) that apply to it. If the National Energy Board considers it necessary, it may determine a greater amount and require proof that the applicant has the financial resources to pay that greater amount.

• Marginal note:Financial resources — other activities

  (2) An applicant for an authorization under paragraph 5(1)(b) for any other work or activity shall provide proof, in the prescribed form and manner, that it has the financial resources necessary to pay an amount that is determined by the National Energy Board.

• Marginal note:Loss of non-use value

  (3) When the National Energy Board determines an amount under subsection (1) or (2), the Board is not required to consider any potential loss of non-use value relating to a public resource that is affected by a spill or the authorized discharge, emission or escape of oil or gas or as a result of debris.

• Marginal note:Continuing obligation

  (4) The holder of an authorization under paragraph 5(1)(b) shall ensure that the proof referred to in subsections (1) and (2) remains in force for the duration of the work or activity in respect of which the authorization is issued.

• Marginal note:Extended obligation

  (5) The holder of an authorization under paragraph 5(1)(b) shall also ensure that the proof referred to in subsection (1) remains in force for a period of one year beginning on the day on which the National Energy Board notifies the holder that it has accepted a report submitted by the holder indicating that the last well in respect of which the authorization is issued is abandoned. The Board may reduce that period and may decide that the proof that is to remain in force during that period is proof that the holder has the financial resources necessary to pay an amount that is less than the amount referred to in subsection (1) and that is determined by the Board.

Marginal note:Lesser amount

• 27.1 (1) The Minister may, by order, on the recommendation of the National Energy Board, approve an amount that is less than the amount referred to in paragraph 26(2.2)(a) or (d) or 27(1)(a) in respect of an applicant for, or a holder of, an authorization under paragraph 5(1)(b).

• Marginal note:Financial resources — exception

  (2) If the Minister approves an amount that is less than the amount referred to in paragraph 26(2.2)(a) or (d) in respect of an applicant for an authorization under paragraph 5(1)(b), that applicant, for the purposes of subsection 26.1(1), shall only provide proof that it has the financial resources necessary to pay the adjusted amount approved by the Minister.

• Marginal note:No contravention

  (3) No applicant for an authorization under paragraph 5(1)(b) contravenes paragraph 27(1)(a) if that applicant provides proof of financial responsibility in the amount that is approved by the Minister under this section.

Transboundary Pools or Fields

Delineation

Marginal note:Appropriate regulator

48.1 For the purposes of sections 48.11 to 48.14, the appropriate regulator is any regulator that has jurisdiction in an area

• (a) adjoining the portion of the perimeter where the drilling took place or where an accumulation of oil or gas exists; or

• (b) into which there is reason to believe that, based on the data obtained from any drilling, an accumulation of oil or gas extends.

Marginal note:Information

• 48.11 (1) If an exploratory well, as defined in subsection 101(1) of the Canada Petroleum Resources Act, is drilled in the perimeter, the National Energy Board shall provide each appropriate regulator, within the prescribed time and in the prescribed manner, with any information in its possession, including any prescribed information, that is relevant to the determination of whether a pool is transboundary and its delineation.

• Marginal note:Additional information

  (2) The National Energy Board shall, on request, provide the regulator with any additional information in its possession, that is relevant to the determination of whether a pool is transboundary and its delineation.

Marginal note:Notice — as soon as feasible

• 48.12 (1) If the data obtained from any drilling in the perimeter provides sufficient information for the National Energy Board to determine whether a pool exists, the Board shall notify each appropriate regulator as soon as feasible of its determination.

• Marginal note:Notice — after three drillings

  (2) If no notice is given under subsection (1), the National Energy Board shall, no later than one year after the day on which it receives data from the last of three drillings of the same geological feature in the perimeter, notify each appropriate regulator of its determination or that there is insufficient information to make a determination based on the data from those drillings.

• Marginal note:Notice — transboundary pool

  (3) If the National Energy Board determines that a pool exists, the Board shall also specify in the notice whether or not there is, in its opinion, reason to believe that the pool is transboundary.

• Marginal note:Reasons

  (4) The National Energy Board shall provide each appropriate regulator and the Minister with the reasons for its determination and opinion.

Marginal note:Notice from regulator

• 48.13 (1) If the National Energy Board receives a notice from a regulator indicating the regulator’s determination as to whether a pool exists in an area adjoining the perimeter and, if applicable, whether there is reason to believe the pool extends into the perimeter, the Board shall, within 90 days after the day on which the notice is received, inform the regulator of its agreement or disagreement with the content of the notice.

• Marginal note:Reasons

  (2) If the National Energy Board disagrees with the content of the notice, it shall provide the regulator with the reasons for its disagreement.

Marginal note:Delineation

• 48.14 (1) If, after receiving a notice under section 48.12 or 48.13, the National Energy Board and the regulator in question agree that a pool exists, the Board and that regulator shall jointly determine whether that pool is transboundary and, if so, they shall jointly delineate its boundaries.

• Marginal note:Disagreement

  (2) The National Energy Board or the regulator may, if they disagree about whether a pool exists, whether the pool is transboundary or its delineation, refer the matter to an expert, no later than 180 days after the day on which the Board issues a notice under section 48.12, or the regulator issues an equivalent notice.

Agreements Relating to Development

Marginal note:Appropriate regulator

48.15 For the purposes of sections 48.16 to 48.27, the appropriate regulator is the regulator that has jurisdiction in an area into which the transboundary pool or field in question extends.

Marginal note:Joint exploitation agreement

48.16 The Minister and the appropriate regulator may enter into a joint exploitation agreement providing for the development of a transboundary pool or field as a single field. The agreement shall include any matters provided for by regulation.

Marginal note:Development as a single field

• 48.17 (1) If a joint exploitation agreement has been entered into, the transboundary pool or field may only be developed as a single field. The development of that field is subject to the following agreements having been entered into and subsequently approved under subsection 48.2(2) or 48.23(4):

  • (a) a unit agreement that includes the details referred to in paragraphs 40(2)(a) to (d); and

  • (b) a unit operating agreement that includes the details referred to in paragraphs 40(3)(a) to (e).

• Marginal note:Joint exploitation agreement prevails

  (2) The joint exploitation agreement prevails over the unit agreement and the unit operating agreement to the extent of any inconsistency between them.

Marginal note:Intention to start production

• 48.18 (1) If an interest owner — as defined in the Canada Petroleum Resources Act — advises the Minister or the National Energy Board, including by way of an application under paragraph 5(1)(b) of this Act or under section 38 of the Canada Petroleum Resources Act, that it intends to start production from a transboundary pool or field, the Minister shall notify the appropriate regulator as soon as feasible of the interest owner’s intention.

• Marginal note:Referral to expert

  (2) If the Minister and the regulator have attempted to enter into a joint exploitation agreement but have been unsuccessful, the Minister or the regulator may, 180 days after the day on which the Minister gives notice under subsection (1), refer the matter to an expert to determine the particulars of the agreement. They may, however, agree to refer the matter to an expert at any time before the end of those 180 days.

Marginal note:Unit agreement

• 48.19 (1) The royalty owners and the working interest owners in a transboundary pool or field that is to be developed as a single field may enter into a unit agreement and, once approved, shall operate their interests in accordance with it, including any amendment to it.

• Marginal note:Applicable provisions

  (2) Subsections 37(2) and (3) apply to the unit agreement.

Marginal note:Condition precedent

• 48.2 (1) A unit agreement and unit operating agreement are to be jointly approved by the Minister and the appropriate regulator before an authorization is issued under paragraph 5(1)(b) for a work or activity proposed to be carried on in relation to the development of a transboundary pool or field as a single field.

• Marginal note:Approval

  (2) The Minister and the appropriate regulator may approve the unit agreement if all the royalty owners and all the working interest owners in the pool or field are parties to it; the Minister and the appropriate regulator may approve the unit operating agreement if all the working interest owners in the pool or field are parties to it.

Marginal note:Application for unitization order

• 48.21 (1) One or more working interest owners who are parties to a unit agreement and a unit operating agreement and own in total 65% or more of the working interests in a transboundary pool or field that is to be developed as a single field may apply for a unitization order with respect to the agreements.

• Marginal note:Contents

  (2) The application shall be submitted to both the Minister and the appropriate regulator. It shall include the documents and statements referred to in subsection 40(1) and may be made by the unit operator or proposed unit operator on behalf of the working interest owners.

• Marginal note:Appointment of expert

  (3) The Minister and the regulator shall, for the purposes of section 48.22, appoint an expert in accordance with subsections 48.27(2) to (4).

Marginal note:Hearing

• 48.22 (1) Once seized of an application made under section 48.21, the expert shall hold a hearing at which all interested persons shall be given an opportunity to be heard.

• Marginal note:Conclusion of hearing

  (2) On the conclusion of the hearing, the expert shall request that the Minister and the appropriate regulator

  • (a) order that the unit agreement is a valid contract enuring to the benefit of all the royalty owners and working interest owners who have an interest in the unit area and binding on and enforceable against all such owners, and that the unit operating agreement is a valid contract enuring to the benefit of all the working interest owners who have an interest in the unit area and binding on and enforceable against all such owners; and

  • (b) include in the order any variations to the unit agreement or unit operating agreement that the expert determines are necessary to allow for the more efficient or more economical production of oil or gas from the unitized zone.

• Marginal note:Exception

  (3) Despite subsection (2), the expert shall end the hearing and request that the Minister and the appropriate regulator take the measure outlined in paragraph (2)(a) if the expert finds that,

  • (a) on the day on which the hearing begins,

    • (i) the unit agreement and the unit operating agreement have been executed by one or more working interest owners who own in total 65% or more of the total working interests in the unit area, and

    • (ii) the unit agreement has been executed by one or more royalty owners who own in total 65% or more of the total royalty interests in the unit area; and

  • (b) the unitization order applied for would allow for the more efficient or more economical production of oil or gas from the unitized zone.

Marginal note:Unitization order

• 48.23 (1) The Minister shall issue an order in accordance with the expert’s request under subsection 48.22(2) or (3).

• Marginal note:Effect of unitization order

  (2) The unit agreement and the unit operating agreement have the effect given to them by the Minister’s order.

• Marginal note:Equivalent order

  (3) A unitization order becomes effective only if the appropriate regulator has issued an equivalent order.

• Marginal note:Joint approval

  (4) The issuance of a unitization order by the Minister and of an equivalent order by the regulator is deemed to be their joint approval of the unit agreement and the unit operating agreement.

• Marginal note:Effective date of unitization order

  (5) Subject to subsections (3) and (6), a unitization order becomes effective on the date set out in the order, but that date shall not be less than 30 days after the day on which the order is made.

• Marginal note:Order revoked

  (6) The Minister shall immediately revoke a unitization order that varies a unit agreement or a unit operating agreement if, before the effective date of that order, the applicant files with the Minister a notice withdrawing the application on behalf of the working interest owners or there are filed with the Minister statements objecting to the order and signed

  • (a) in the case of the unit agreement, by

    • (i) one or more working interest owners who own in total more than 25% of the total working interests in the unit area and are part of the group that owns 65% or more of the total working interests as described in subparagraph 48.22(3)(a)(i), and

    • (ii) one or more royalty owners who own in total more than 25% of the total royalty interests in the unit area and are part of the group that owns 65% or more of the total royalty interests as described in subparagraph 48.22(3)(a)(ii); or

  • (b) in the case of the unit operating agreement, by one or more working interest owners who own in total more than 25% of the total working interests in the unit area and are part of the group that owns 65% or more of the total working interests as described in subparagraph 48.22(3)(a)(i).

• Marginal note:Application of sections 43 and 46

  (7) Sections 43 and 46 apply to the unitization order.

Marginal note:Amending unitization order

• 48.24 (1) A unitization order may be amended on the application of a working interest owner submitted to both the Minister and the appropriate regulator.

• Marginal note:Appointment of expert

  (2) The Minister and the regulator shall appoint an expert in accordance with subsections 48.27(2) to (4) for the purposes of this section.

• Marginal note:Hearing

  (3) Once seized of the application, the expert shall hold a hearing at which all interested persons shall be given an opportunity to be heard.

• Marginal note:Conclusion of hearing

  (4) On the conclusion of the hearing, the expert may request that the Minister order the amendment of the unitization order in accordance with the amendment proposed and to include in the order any variations to it that the expert determines are necessary to allow for the more efficient or more economical production of oil or gas from the unitized zone. If the expert makes such a request, the expert shall also request that the appropriate regulator order the amendment of its equivalent order in the same way.

• Marginal note:Exception

  (5) If the expert finds that, on the day on which the hearing begins, one or more working interest owners who own in total 65% or more of the total working interests and one or more royalty interest owners who own in total 65% or more of the total royalty interests in the unit area have consented to the proposed amendment, the expert may end the hearing and request that the Minister amend the unitization order in accordance with the amendment proposed. If the expert makes such a request, the expert shall also request that the appropriate regulator amend its equivalent order in the same way.

• Marginal note:Application of section 48.23

  (6) Section 48.23 applies, with any modifications that the circumstances require, to an amended unitization order.

Marginal note:Protection of tract participation ratios

48.25 No amendment shall be made under section 48.24 that will alter the ratios between the tract participations of those tracts that were qualified for inclusion in the unit area before the commencement of the hearing, and, for the purposes of this section, the tract participations shall be those indicated in the unit agreement when it became subject to a unitization order.

Marginal note:Determination — percentages of interests

48.26 The percentages of interests referred to in subsections 48.21(1), 48.22(3), 48.23(6) and 48.24(5) shall be determined in accordance with section 47.

Referral to Expert

Marginal note:Notice

• 48.27 (1) The party that intends to refer a matter to an expert under subsection 5.1(9), 5.2(6), 48.14(2) or 48.18(2) shall notify the other party of their intention.

• Marginal note:Appointment — single expert

  (2) Within 30 days after the day on which a notice is given under subsection (1) or an application is made under subsection 48.21(1) or 48.24(1), the parties shall agree on the appointment of an expert who shall be seized of the matter.

• Marginal note:Appointment — expert panel

  (3) If the parties do not agree on the appointment of a single expert, they shall, within 30 days after the day on which the period to jointly appoint an expert under subsection (2) ends, each appoint one expert to a panel and those experts shall, in turn, jointly appoint an additional expert as chairperson. If there is no agreement on the appointment of a chairperson within 30 days after the day of the last appointment, the chairperson shall be appointed by the Chief Justice of the Federal Court within 30 days after the period for appointing a chairperson ends. Once the chairperson is appointed, the expert panel shall be seized of the matter.

• Marginal note:Qualifications — expert

  (4) An expert shall be impartial and independent, and have knowledge or experience relative to the subject of disagreement between the parties.

• Marginal note:Decisions

  (5) Decisions of an expert panel shall be made on the basis of a majority vote of the members. The chairperson’s vote is the deciding vote in the case of a tie.

• Marginal note:Time limit

  (6) The expert’s decision shall be made no later than 270 days after the day on which they were seized of the matter.

• Marginal note:Decision is final and binding

  (7) Subject to judicial review, a decision made by an expert is final and binding on all parties specified in the decision from the date specified in it.

• Marginal note:Records to be kept

  (8) An expert shall cause records to be kept of their hearings and proceedings and shall deposit their records with the Minister when their activities to which the records relate have ceased.

• Marginal note:Sentencing principles

  (3) 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 found guilty of an offence under this Act:

  • (a) 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 (4); and

  • (b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.

• Marginal note:Aggravating factors

  (4) The aggravating factors are the following:

  • (a) the offence caused harm or risk of harm to human health or safety;

  • (b) the offence caused damage or risk of damage to the environment or to environmental quality;

  • (c) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable component of the environment;

  • (d) the damage or harm caused by the offence is extensive, persistent or irreparable;

  • (e) the offender committed the offence intentionally or recklessly;

  • (f) the offender failed to take reasonable steps to prevent the commission of the offence;

  • (g) by committing the offence or failing to take action to prevent its commission, the offender increased their revenue or decreased their costs or intended to increase their revenue or decrease their costs;

  • (h) the offender has a history of non-compliance with federal or provincial legislation that relates to safety or environmental conservation or protection; and

  • (i) after the commission of the offence, the offender

    • (i) attempted to conceal its commission,

    • (ii) failed to take prompt action to prevent, mitigate or remediate its effects, or

    • (iii) failed to take prompt action to reduce the risk of committing similar offences in the future.

• Marginal note:Absence of aggravating factor

  (5) The absence of an aggravating factor set out in subsection (4) is not a mitigating factor.

• Meaning of “damage”

  (6) For the purposes of paragraphs (4)(b) to (d), “damage” includes loss of use value and non-use value.

• Marginal note:Reasons

  (7) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (4) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision.

Marginal note:Order of court

• 65. (1) If a person is found guilty of an offence under this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, in addition to any other punishment that may be imposed under this Act, make an order that has any or all of the following effects:

  • (a) prohibiting the offender from committing an act or engaging in an activity that may, in the opinion of the court, result in the continuation or repetition of the offence;

  • (b) directing the offender to take any action that the court considers appropriate to remedy or avoid any harm to the environment that results or may result from the act or omission that constituted the offence;

  • (c) directing the offender to carry out environmental effects monitoring in the manner established by the National Energy Board or directing the offender to pay, in the manner specified by the court, an amount of money for the purposes of environmental effects monitoring;

  • (d) directing the offender to make changes to their environmental management system that are satisfactory to the National Energy Board;

  • (e) directing the offender to have an environmental audit conducted by a person of a class and at the times specified by the National Energy Board and directing the offender to remedy any deficiencies revealed during the audit;

  • (f) directing the offender to pay to Her Majesty in right of Canada, for the purpose of promoting the conservation, protection or restoration of the environment, or to pay into the Environmental Damages Fund — an account in the accounts of Canada — an amount of money that the court considers appropriate;

  • (g) directing the offender to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection;

  • (h) directing the offender to notify, at the offender’s own cost and in the manner specified by the court, any person aggrieved or affected by the offender’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;

  • (i) directing the offender to post a bond or pay an amount of money into court that the court considers appropriate to ensure that the offender complies with any prohibition, direction, requirement or condition that is specified in the order;

  • (j) directing the offender to perform community service, subject to any reasonable conditions that may be imposed by the court;

  • (k) directing the offender to pay, in the manner specified by the court, an amount of money to environmental, health or other groups to assist in their work in the community where the offence was committed;

  • (l) directing the offender to pay, in the manner specified by the court, an amount of money to an educational institution including for scholarships for students enrolled in studies related to the environment;

  • (m) requiring the offender to comply with any conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for preventing the offender from repeating the same offence or committing another offence under this Act;

  • (n) prohibiting the offender from taking measures to acquire an interest under the Canada Petroleum Resources Act or from applying for any new licence or other authorization under this Act during any period that the court considers appropriate.

• Marginal note:Coming into force and duration of order

  (2) An order made under subsection (1) comes into force on the day on which the order is made or on any other day that the court may determine, but shall not continue in force for more than three years after that day.

• Marginal note:Publication

  (3) If an offender does not comply with an order requiring the publication of facts relating to the offence and the details of the punishment, the National Energy Board may, in the manner that the court directed the offender, publish those facts and details and recover the costs of publication from the offender.

• Marginal note:Debt due to Her Majesty

  (4) If the National Energy Board incurs publication costs under subsection (3), the costs constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.

Marginal note:Variation of sanctions

• 65.1 (1) Subject to subsection (2), if a court has made, in relation to an offender, an order under section 65, the court may, on application by the offender or the National Energy Board, require the offender to appear before it and, after hearing the offender and the Board, vary the order in one or more of the following ways that the court considers appropriate because of a change in the offender’s circumstances since the order was made:

  • (a) by making changes to any prohibition, direction, requirement or condition that is specified in the order for any period or by extending the period during which the order is to remain in force, not exceeding one year; or

  • (b) by decreasing the period during which the order is to remain in force or by relieving the offender of compliance with any condition that is specified in the order, either absolutely or partially or for any period.

• Marginal note:Notice

  (2) Before making an order under subsection (1), the court may direct that notice be given to any persons that the court considers to be interested, and may hear any of those persons.

Marginal note:Subsequent applications with leave

65.2 If an application made under subsection 65.1(1) in relation to an offender has been heard by a court, no other application may be made under section 65.1 in relation to the offender except with leave of the court.

Marginal note:Recovery of fines and amounts

65.3 If a person is convicted of an offence under this Act and a fine that is imposed is not paid when required or if a court orders an offender to pay an amount under subsection 65(1) or 65.1(1), the prosecutor may, by filing the conviction or order, as the case may be, enter as a judgment the amount of the fine or the amount ordered to be paid, and costs, if any, in any court of competent jurisdiction in Canada, and the judgment is enforceable against the person in the same manner as if it were a judgment rendered against them in that court in civil proceedings.

Administrative Monetary Penalties

Powers

Marginal note:Regulations

• 71.01 (1) The Governor in Council may make regulations

  • (a) designating as a violation that may be proceeded with in accordance with this Act

    • (i) the contravention of any specified provision of this Act or of any of its regulations,

    • (ii) the contravention of any direction, requirement, decision or order, or of any direction, requirement, decision or order of a specified class of directions, requirements, decisions or orders, made under this Act, or

    • (iii) the failure to comply with any term, condition or requirement of

      • (A) an operating licence or authorization or any specified class of operating licences or authorizations, or

      • (B) any approval, leave or exemption or any specified class of approvals, leave or exemptions granted under this Act;

  • (b) respecting the determination of, or the method of determining, the amount payable as the penalty, which may be different for individuals and other persons, for each violation; and

  • (c) respecting the service of documents required or authorized under section 71.06, 71.2 or 71.5, including the manner and proof of service and the circumstances under which documents are considered to be served.

• Marginal note:Maximum penalty

  (2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for a violation shall not be more than $25,000, in the case of an individual, and $100,000, in the case of any other person.

Marginal note:Powers

71.02 The National Energy Board may

• (a) establish the form of notices of violation;

• (b) designate persons or classes of persons who are authorized to issue notices of violation;

• (c) establish, in respect of each violation, a short-form description to be used in notices of violation; and

• (d) designate persons or classes of persons to conduct reviews under section 71.4.

Violations

Marginal note:Commission of violation

• 71.03 (1) Every person who contravenes or fails to comply with a provision, direction, requirement, decision or order, or term or condition the contravention of which, or the failure to comply with which, is designated to be a violation by a regulation made under paragraph 71.01(1)(a) commits a violation and is liable to a penalty of an amount to be determined in accordance with the regulations.

• Marginal note:Purpose of penalty

  (2) The purpose of the penalty is to promote compliance with this Act and not to punish.

Marginal note:Liability of directors, officers, etc.

71.04 If a corporation commits a violation, any director, officer, or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty of an amount to be determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Act.

Marginal note:Proof of violation

71.05 In any proceedings under this Act against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee, or agent or mandatary, of the person, whether or not the employee, or agent or mandatary is identified or proceeded against in accordance with this Act.

Marginal note:Issuance and service of notice of violation

• 71.06 (1) If a person designated under paragraph 71.02(b) believes on reasonable grounds that a person has committed a violation, the designated person may issue a notice of violation and cause it to be served on the person.

• Marginal note:Contents

  (2) The notice of violation shall

  • (a) name the person that is believed to have committed the violation;

  • (b) set out the relevant facts surrounding the violation;

  • (c) set out the amount of the penalty for the violation;

  • (d) inform the person of their right, under section 71.2, to request a review with respect the amount of the penalty or the facts of the violation, and of the prescribed period within which that right is to be exercised;

  • (e) inform the person of the manner of paying the penalty set out in the notice; and

  • (f) inform the person that, if they do not exercise their right to request a review or if they do not pay the penalty, they will be considered to have committed the violation and that they are liable to the penalty set out in the notice.

Rules About Violations

Marginal note:Certain defences not available

• 71.07 (1) A person named in a notice of violation does not have a defence by reason that the person

  • (a) exercised due diligence to prevent the commission of the violation; or

  • (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

Marginal note:Continuing violation

71.08 A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

Marginal note:Violation or offence

• 71.09 (1) Proceeding with any act or omission as a violation under this Act precludes proceeding with it as an offence under this Act, and proceeding with it as an offence under this Act precludes proceeding with it as a violation under this Act.

• Marginal note:Violations not offences

  (2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.

Marginal note:Limitation or prescription period

71.1 No notice of violation is to be issued more than two years after the day on which the matter giving rise to the violation occurred.

Reviews

Marginal note:Right to request review

71.2 A person who is served with a notice of violation may, within 30 days after the day on which it is served, or within any longer period that the National Energy Board allows, make a request to that Board for a review of the amount of the penalty or the facts of the violation, or both.

Marginal note:Correction or cancellation of notice of violation

71.3 At any time before a request for a review in respect of a notice of violation is received by the National Energy Board, a person designated under paragraph 71.02(b) may cancel the notice of violation or correct an error in it.

Marginal note:Review

• 71.4 (1) On receipt of a request made under section 71.2, the National Energy Board shall conduct the review or cause the review to be conducted by a person designated under paragraph 71.02(d).

• Marginal note:Restriction

  (2) The National Energy Board shall conduct the review if the notice of violation was issued by a person designated under paragraph 71.02(d).

Marginal note:Object of review

• 71.5 (1) The National Energy Board or the person conducting the review shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the person committed the violation, or both.

• Marginal note:Determination

  (2) The National Energy Board or the person conducting the review shall render a determination and the reasons for it in writing and cause the person who requested the review to be served with a copy of them.

• Marginal note:Correction of penalty

  (3) If the National Energy Board or the person conducting the review determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Board or the person, as the case may be, shall correct the amount of the penalty.

• Marginal note:Responsibility

  (4) If the National Energy Board or the person conducting the review determines that the person who requested the review committed the violation, the person who requested the review is liable to the penalty as set out in the notice issued under section 71.06 or as set out in the determination if the amount of the penalty was corrected under subsection (3).

• Marginal note:Determination final

  (5) A determination made under this section is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.

• Marginal note:Federal Court

  (6) Despite section 28 of the Federal Courts Act, the Federal Court has exclusive original jurisdiction to hear and determine an application for judicial review of a determination made under this section by the National Energy Board.

Marginal note:Burden of proof

71.6 If the facts of a violation are reviewed, the person who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.

Responsibility

Marginal note:Payment

71.7 If a person pays the penalty set out in a notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.

Marginal note:Failure to act

71.8 A person that neither pays the penalty imposed under this Act nor requests a review within the period referred to in section 71.2 is considered to have committed the violation and is liable to the penalty.

Recovery of Penalties

Marginal note:Debt to Her Majesty

• 71.9 (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered in the Federal Court or any other court of competent jurisdiction.

• Marginal note:Limitation period

  (2) No proceedings to recover the debt are to be instituted more than five years after the day on which the debt becomes payable.

Marginal note:Certificate

• 72. (1) The National Energy Board may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 71.9(1).

• Marginal note:Registration in Federal Court

  (2) Registration in the Federal Court or in any other court of competent jurisdiction of a certificate of non-payment issued under subsection (1) has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.

General

Marginal note:Admissibility of documents

72.01 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 71.06(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.

Marginal note:Publication

72.02 The National Energy Board may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.

• b) problème environnemental ou social grave;

• Marginal note:Limite

  (5) La déclaration de découverte importante ne peut être modifiée en vue de réduire le périmètre ou annulée avant la date d’expiration du permis de prospection visé au paragraphe 30(1) ou moins de trois ans après la date de prise d’effet de l’attestation visée au paragraphe 30(2).

• Marginal note:Application of certain provisions

  (3) Subsections 28(3) to (6) apply, with any modifications that the circumstances require, with respect to a declaration made under subsection (1) or (2).

Marginal note:Notice of order to reduce term of interest

• 36. (1) The Minister may, at any time after the National Energy Board has made a declaration of commercial discovery, give notice to the interest owner of any interest in relation to any portion of the commercial discovery area where commercial production of petroleum has not commenced before that time stating that, after any period of not less than six months that may be specified in the notice, an order may be made reducing the term of that interest.

Marginal note:Notice — subsection 101(10)

• 101.1 (1) If the National Energy Board intends to disclose any information or documentation under subsection 101(10), the Board shall make every reasonable effort to give the person who provided it written notice of the Board’s intention to disclose it.

• Marginal note:Waiver of notice

  (2) Any person to whom a notice is required to be given under subsection (1) may waive the requirement, and if they have consented to the disclosure they are deemed to have waived the requirement.

• Marginal note:Contents of notice

  (3) A notice given under subsection (1) shall include

  • (a) a statement that the National Energy Board intends to disclose information or documentation under subsection 101(10);

  • (b) a description of the information or documentation that was provided by the person to whom the notice is given; and

  • (c) a statement that the person may, within 20 days after the day on which the notice is given, make written representations to the Board as to why the information or documentation, or a portion of it, should not be disclosed.

• Marginal note:Representations

  (4) If a notice is given to a person under subsection (1), the National Energy Board shall

  • (a) give the person the opportunity to make, within 20 days after the day on which the notice is given, written representations to the Board as to why the information or documentation, or a portion of it, should not be disclosed; and

  • (b) after the person has had the opportunity to make representations, but no later than 30 days after the day on which the notice is given, make a decision as to whether or not to disclose the information or documentation and give written notice of the decision to the person.

• Marginal note:Contents of notice of decision to disclose

  (5) A notice given under paragraph (4)(b) of a decision to disclose information or documentation shall include

  • (a) a statement that the person to whom the notice is given may request a review of the decision under subsection (7) within 20 days after the notice is given; and

  • (b) a statement that if no review is requested under subsection (7) within 20 days after the notice is given, the National Energy Board shall disclose the information or documentation.

• Marginal note:Disclosure of information or documentation

  (6) If, under paragraph (4)(b), the National Energy Board decides to disclose the information or documentation, the Board shall disclose it on the expiry of 20 days after a notice is given under that paragraph, unless a review of the decision is requested under subsection (7).

• Marginal note:Review

  (7) Any person to whom the National Energy Board is required under paragraph (4)(b) to give a notice of a decision to disclose information or documentation may, within 20 days after day on which the notice is given, apply to the Federal Court for a review of the decision.

• Marginal note:Hearing in summary way

  (8) An application made in accordance with subsection (7) shall be heard and determined in a summary way in accordance with any special rules made in respect of such applications under section 46 of the Federal Courts Act.

• Marginal note:Court to take precautions against disclosing

  (9) In any proceedings before the Federal Court arising from an application made in accordance with subsection (7), the Court shall take every reasonable precaution, including, when appropriate, conducting hearings in camera, to avoid the disclosure by the Court or any person of any information or documentation that, under this Act, is privileged or is not to be disclosed.

“spill-treating agent”

« agent de traitement »

“spill-treating agent”, except in section 161.5, means a spill-treating agent that is on the list established under section 14.2 of the Canada Oil and Gas Operations Act.

Marginal note:Provincial Minister’s approval

7. Before a regulation is made under subsection 5(1), section 29.1, subsection 41(7), section 64, subsection 67(2), section 118, subsection 122(1), 125(1), 149(1), 152(5), 162(2.3), 163(1.02) or 202.01(1) or section 203, the Federal Minister shall consult the Provincial Minister with respect to the proposed regulation and the regulation shall not be made without the Provincial Minister’s approval.

Cost Recovery

Marginal note:Regulations respecting fees, etc.

• 29.1 (1) Subject to section 7, the Governor in Council may make regulations

  • (a) respecting the fees or charges, or the method of calculating the fees or charges, to be paid for the provision, by the Board, of a service or product under this Act;

  • (b) respecting the fees or charges, or the method of calculating the fees or charges, in respect of any of the Board’s activities under this Act or under the Canadian Environmental Assessment Act, 2012, that are to be paid by

    • (i) a person who makes an application for an authorization under paragraph 138(1)(b) or an application under subsection 139(2), or

    • (ii) the holder of an operating licence issued under paragraph 138(1)(a) or an authorization issued under paragraph 138(1)(b); and

  • (c) respecting the refund of all or part of any fee or charge referred to in paragraph (a) or (b), or the method of calculating that refund.

• Marginal note:Amounts not to exceed cost

  (2) The amounts of the fees or charges referred to in paragraph (1)(a) shall not exceed the cost of providing the services or products.

• Marginal note:Amounts not to exceed cost

  (3) The amounts of the fees or charges referred to in paragraph (1)(b) shall not exceed the cost of the Board’s activities under this Act or under the Canadian Environmental Assessment Act, 2012.

Marginal note:Non-application of User Fees Act

29.2 The User Fees Act does not apply to any fees or charges payable in accordance with regulations made under section 29.1.

Marginal note:Remittance of fees and charges

29.3 One half of the amounts of the fees and charges obtained in accordance with regulations made under section 29.1 shall be paid to the credit of the Receiver General and the other half shall be paid to the credit of Her Majesty in right of the Province, in the time and manner prescribed under those regulations.

Marginal note:Public review

• 44. (1) Subject to any directives issued under subsection 42(1), the Board shall conduct a public review in relation to any potential development of a pool or field unless the Board is of the opinion that it is not required on any ground the Board considers to be in the public interest.

Public Hearings

Marginal note:Public hearings

44.1 The Board may conduct a public hearing in relation to the exercise of any of its powers or the performance of any of its duties and functions as a responsible authority as defined in subsection 2(1) of the Canadian Environmental Assessment Act, 2012.

Marginal note:Confidentiality

44.2 At any public hearing conducted under section 44.1, the Board may take any measures and make any order that it considers necessary to ensure the confidentiality of any information likely to be disclosed at the hearing if the Board is satisfied that

• (a) disclosure of the information could reasonably be expected to result in a material loss or gain to a person directly affected by the hearing, or to prejudice the person’s competitive position, and the potential harm resulting from the disclosure outweighs the public interest in making the disclosure; or

• (b) the information is financial, commercial, scientific or technical information that is confidential information supplied to the Board and

  • (i) the information has been consistently treated as confidential information by a person directly affected by the hearing, and

  • (ii) the person’s interest in confidentiality outweighs the public interest in its disclosure.

Marginal note:Confidentiality — security

44.3 At any public hearing conducted under section 44.1, the Board may take any measures and make any order that it considers necessary to ensure the confidentiality of information that is likely to be disclosed at the hearing if the Board is satisfied that

• (a) there is a real and substantial risk that disclosure of the information will impair the security of pipelines, as defined in section 135, installations, vessels, aircraft or systems, including computer or communication systems, or methods employed to protect them; and

• (b) the need to prevent disclosure of the information outweighs the public interest in its disclosure.

Marginal note:Exception

44.4 The Board shall not take any measures or make any order under section 44.2 or 44.3 in respect of information or documentation referred to in paragraphs 119(5)(a) to (e) and (i).

• Marginal note:Idem

  (5) La déclaration de découverte importante ne peut être modifiée en vue de réduire le périmètre ou annulée avant la date d’expiration du permis de prospection visé au paragraphe 73(1) ou moins de trois ans après la date de prise d’effet de l’attestation visée au paragraphe 73(2).

• Marginal note:Trésor

  (2) Dès que possible après leur recouvrement ou réception par l’Office sous le régime du présent article, les montants sont déposés au crédit du receveur général et versés au Trésor selon les modalités prescrites par le Conseil du Trésor conformément à la Loi sur la gestion des finances publiques.

Marginal note:Notice — subsection 119(11)

• 119.1 (1) If the Board intends to disclose any information or documentation under subsection 119(11), the Board shall make every reasonable effort to give the person who provided it written notice of the Board’s intention to disclose it.

• Marginal note:Waiver of notice

  (2) Any person to whom a notice is required to be given under subsection (1) may waive the requirement, and if they have consented to the disclosure they are deemed to have waived the requirement.

• Marginal note:Contents of notice

  (3) A notice given under subsection (1) shall include

  • (a) a statement that the Board intends to disclose information or documentation under subsection 119(11);

  • (b) a description of the information or documentation that was provided by the person to whom the notice is given; and

  • (c) a statement that the person may, within 20 days after the day on which the notice is given, make written representations to the Board as to why the information or documentation, or a portion of it, should not be disclosed.

• Marginal note:Representations

  (4) If a notice is given to a person under subsection (1), the Board shall

  • (a) give the person the opportunity to make, within 20 days after the day on which the notice is given, written representations to the Board as to why the information or documentation, or a portion of it, should not be disclosed; and

  • (b) after the person has had the opportunity to make representations, but no later than 30 days after the day on which the notice is given, make a decision as to whether or not to disclose the information or documentation and give written notice of the decision to the person.

• Marginal note:Contents of notice of decision to disclose

  (5) A notice given under paragraph (4)(b) of a decision to disclose information or documentation shall include

  • (a) a statement that the person to whom the notice is given may request a review of the decision under subsection (7) within 20 days after the day on which the notice is given; and

  • (b) a statement that if no review is requested under subsection (7) within 20 days after the day on which the notice is given, the Board shall disclose the information or documentation.

• Marginal note:Disclosure of information or documentation

  (6) If, under paragraph (4)(b), the Board decides to disclose the information or documentation, the Board shall disclose it on the expiry of 20 days after the day on which a notice is given under that paragraph, unless a review of the decision is requested under subsection (7).

• Marginal note:Review

  (7) Any person to whom the Board is required under paragraph (4)(b) to give a notice of a decision to disclose information or documentation may, within 20 days after the day on which the notice is given, apply to the Trial Division of the Supreme Court of Newfoundland and Labrador for a review of the decision.

• Marginal note:Hearing in summary way

  (8) An application made under subsection (7) shall be heard and determined in a summary way in accordance with any applicable rules of practice and procedure of that Court.

• Marginal note:Court to take precautions against disclosing

  (9) In any proceedings arising from an application under subsection (7), the Trial Division of the Supreme Court of Newfoundland and Labrador shall take every reasonable precaution, including, when appropriate, conducting hearings in camera, to avoid the disclosure by the Court or any person of any information or documentation that, under this Act, is privileged or is not to be disclosed.

• (b.1) accountability in accordance with the “polluter pays” principle;

Marginal note:Delegation

137.1 The Board may delegate any of the Board’s powers under section 138, 138.2, 138.3, 139.1, 139.2, 162.1 or 163 to any person, and the person shall exercise those powers in accordance with the terms of the delegation.

Marginal note:Environmental assessment

• 138.01 (1) If an application for an authorization under paragraph 138(1)(b) or an application made under subsection 139(2) is in respect of a physical activity described in subsection (2), the Board shall issue the decision statement referred to in section 54 of the Canadian Environmental Assessment Act, 2012 in respect of the physical activity within 12 months after the day on which the applicant has, in the Board’s opinion, provided a complete application.

• Marginal note:Physical activity

  (2) The physical activity in question is a physical activity that:

  • (a) is carried out in the offshore area;

  • (b) is designated by regulations made under paragraph 84(a) of the Canadian Environmental Assessment Act, 2012 or in an order made under subsection 14(2) of that Act;

  • (c) is one for which the Board is the responsible authority as defined in subsection 2(1) of that Act; and

  • (d) is one in relation to which an environmental assessment was not referred to a review panel under section 38 of that Act.

  It includes any physical activity that is incidental to the physical activity described in paragraphs (a) to (d).

• Marginal note:Excluded period

  (3) If the Board requires the applicant to provide information or undertake a study with respect to the physical activity, the period that is taken by the applicant, in the Board’s opinion, to comply with the requirement is not included in the calculation of the period referred to in subsection (1).

• Marginal note:Public notice

  (4) The Board shall, without delay, make public

  • (a) the date on which the 12-month period referred to in subsection (1) begins; and

  • (b) the dates on which the period referred to in subsection (3) begins and ends.

Marginal note:Participant funding program

138.02 The Board may establish a participant funding program to facilitate the participation of the public in the environmental assessment as defined in subsection 2(1) of the Canadian Environmental Assessment Act, 2012 of any physical activity described in subsection 138.01(2) that meets the condition set out in paragraph 58(1)(a) of that Act and that is the subject of an application for an authorization under paragraph 138(1)(b) or an application made under subsection 139(2).

Financial Requirements

Marginal note:Compliance with certain provisions

138.3 The Board shall, before issuing an authorization for a work or activity referred to in paragraph 138(1)(b), ensure that the applicant has complied with the requirements of subsections 162.1(1) or (2) and 163(1) or (1.01) in respect of that work or activity.

Marginal note:Amendments to Schedule 1 or 2

• 149.1 (1) The Governor in Council may, by order, amend Schedule 1 or 2 to add, amend or remove a reference to a federal Act or regulation, or to a provision of a federal Act or regulation.

• Marginal note:Recommendation

  (2) The order shall be made on the recommendation of the Federal Minister and every minister responsible for the administration of the provision.

Marginal note:Guidelines and interpretation notes

• 151.1 (1) The Board may issue and publish, in any manner the Board considers appropriate, guidelines and interpretation notes with respect to the application and administration of sections 45, 138 and 139 and subsection 163(1.01) and any regulations made under sections 29.1 and 149.

Definition of “spill”

• 160. (1) In sections 161 to 165, “spill” means a discharge, emission or escape of petroleum, other than one that is authorized under subsection 161.5(1), the regulations or any other federal law. It does not include a discharge from a vessel to which Part 8 or 9 of the Canada Shipping Act, 2001 applies or from a ship to which Part 6 of the Marine Liability Act applies.

• Definition of “actual loss or damage”

  (2) In section 162, “actual loss or damage” includes loss of income, including future income, and, with respect to any Aboriginal peoples of Canada, loss of hunting, fishing and gathering opportunities. It does not include loss of income recoverable under subsection 42(3) of the Fisheries Act.

• Definition of “debris”

  (3) In sections 162 to 163 and 165, “debris” means any installation or structure that was put in place in the course of any work or activity required to be authorized under paragraph 138(1)(b) and that has been abandoned without an authorization that may be required by or under this Part, or any material that has broken away or been jettisoned or displaced in the course of any of that work or activity.

Marginal note:Canadian Environmental Protection Act, 1999

161.2 Section 123 and subsections 124(1) to (3) of the Canadian Environmental Protection Act, 1999 do not apply in respect of a spill-treating agent.

Marginal note:Fisheries Act — civil liability

161.3 For the purpose of section 42 of the Fisheries Act, if subsection 36(3) of that Act would have been contravened but for subsection 161.1(1),

• (a) subsection 36(3) of that Act is deemed to apply in respect of the deposit of the spill-treating agent;

• (b) the holder of the authorization referred to in paragraph 161.1(1)(a) is deemed to be the only person referred to in paragraph 42(1)(a) of that Act; and

• (c) those persons who caused or contributed to the spill are deemed to be the only persons referred to in paragraph 42(1)(b) of that Act.

Marginal note:Notice

161.4 The Federal Minister shall, as soon as possible after it is made, notify the Provincial Minister and the Board of the making of the list of spill-treating agents and any amendment to that list.

Marginal note:Scientific research

• 161.5 (1) For the purpose of a particular research project pertaining to the use of a spill-treating agent in mitigating the environmental impacts of a spill, the Minister of the Environment may authorize, and establish conditions for, the deposit of a spill-treating agent, oil or oil surrogate if the Federal Minister has obtained the Provincial Minister’s approval.

• Marginal note:Oil surrogate

  (2) The Minister of the Environment shall not authorize the deposit of an oil surrogate unless that Minister determines that the oil surrogate poses fewer safety, health or environmental risks than oil.

• Marginal note:Non-application

  (3) If the conditions set out in the authorization are met, the provisions referred to in section 161.2 and Schedules 1 and 2 do not apply in respect of the spill-treating agent, oil and oil surrogate required for the research project.

Marginal note:Financial resources — certain activities

• 162.1 (1) An applicant for an authorization under paragraph 138(1)(b) for the drilling for or development or production of petroleum shall provide proof, in the prescribed form and manner, that it has the financial resources necessary to pay the greatest of the amounts of the limits of liability referred to in subsection 162(2.2) that apply to it. If the Board considers it necessary, it may determine a greater amount and require proof that the applicant has the financial resources to pay that greater amount.

• Marginal note:Financial resources — other activities

  (2) An applicant for an authorization under paragraph 138(1)(b) for any other work or activity shall provide proof, in the prescribed form and manner, that it has the financial resources necessary to pay an amount that is determined by the Board.

• Marginal note:Loss of non-use value not considered

  (3) When the Board determines an amount under subsection (1) or (2), the Board is not required to consider any potential loss of non-use value relating to a public resource that is affected by a spill or the authorized discharge, emission or escape of petroleum or as a result of debris.

• Marginal note:Continuing obligation

  (4) The holder of an authorization under paragraph 138(1)(b) shall ensure that the proof referred to in subsections (1) and (2) remains in force for the duration of the work or activity in respect of which the authorization is issued.

• Marginal note:Extended obligation

  (5) The holder of an authorization under paragraph 138(1)(b) shall also ensure that the proof referred to in subsection (1) remains in force for a period of one year beginning on the day on which the Board notifies the holder that it has accepted a report submitted by the holder indicating that the last well in respect of which the authorization is issued is abandoned. The Board may reduce that period and may decide that the proof that is to remain in force during that period is proof that the holder has the financial resources necessary to pay an amount that is less than the amount referred to in subsection (1) and that is determined by the Board.

Marginal note:Lesser amount

• 163.1 (1) The Federal Minister may, by order, on the recommendation of the Board and with the Provincial Minister’s approval, approve an amount that is less than the amount referred to in paragraph 162(2.2)(a) or (b) or 163(1)(a) in respect of an applicant for, or a holder of, an authorization under paragraph 138(1)(b).

• Marginal note:Financial resources — exception

  (2) If the Federal Minister approves an amount that is less than the amount referred to in paragraph 162(2.2)(a) or (b) in respect of an applicant for an authorization under paragraph 138(1)(b), that applicant, for the purposes of subsection 162.1(1), shall only provide proof that it has the financial resources necessary to pay the adjusted amount approved by the Federal Minister.

• Marginal note:No contravention

  (3) No applicant for an authorization under paragraph 138(1)(b) contravenes paragraph 163(1)(a) if that applicant provides proof of financial responsibility in the amount that is approved by the Federal Minister under this section.

• Marginal note:Sentencing principles

  (3) 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 found guilty of an offence under this Part:

  • (a) 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 (4); and

  • (b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.

• Marginal note:Aggravating factors

  (4) The aggravating factors are the following:

  • (a) the offence caused harm or risk of harm to human health or safety;

  • (b) the offence caused damage or risk of damage to the environment or to environmental quality;

  • (c) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable component of the environment;

  • (d) the damage or harm caused by the offence is extensive, persistent or irreparable;

  • (e) the offender committed the offence intentionally or recklessly;

  • (f) the offender failed to take reasonable steps to prevent the commission of the offence;

  • (g) by committing the offence or failing to take action to prevent its commission, the offender increased their revenue or decreased their costs or intended to increase their revenue or decrease their costs;

  • (h) the offender has a history of non-compliance with federal or provincial legislation that relates to safety or environmental conservation or protection; and

  • (i) after the commission of the offence, the offender

    • (i) attempted to conceal its commission,

    • (ii) failed to take prompt action to prevent, mitigate or remediate its effects, or

    • (iii) failed to take prompt action to reduce the risk of committing similar offences in the future.

• Marginal note:Absence of aggravating factor

  (4.1) The absence of an aggravating factor set out in subsection (4) is not a mitigating factor.

• Meaning of “damage”

  (4.2) For the purposes of paragraphs (4)(b) to (d), “damage” includes loss of use value and non-use value.

• Marginal note:Reasons

  (4.3) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (4) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision.

Marginal note:Order of court

• 196. (1) If a person is found guilty of an offence under this Part, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, in addition to any other punishment that may be imposed under this Part, make an order that has any or all of the following effects:

  • (a) prohibiting the offender from committing an act or engaging in an activity that may, in the opinion of the court, result in the continuation or repetition of the offence;

  • (b) directing the offender to take any action that the court considers appropriate to remedy or avoid any harm to the environment that results or may result from the act or omission that constituted the offence;

  • (c) directing the offender to carry out environmental effects monitoring in the manner established by the Board or directing the offender to pay, in the manner specified by the court, an amount of money for the purposes of environmental effects monitoring;

  • (d) directing the offender to make changes to their environmental management system that are satisfactory to the Board;

  • (e) directing the offender to have an environmental audit conducted by a person of a class and at the times specified by the Board and directing the offender to remedy any deficiencies revealed during the audit;

  • (f) directing the offender to pay to Her Majesty in right of Canada, for the purpose of promoting the conservation, protection or restoration of the environment, or to pay into the Environmental Damages Fund — an account in the accounts of Canada — an amount of money that the court considers appropriate;

  • (g) directing the offender to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection;

  • (h) directing the offender to notify, at the offender’s own cost and in the manner specified by the court, any person aggrieved or affected by the offender’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;

  • (i) directing the offender to post a bond or pay an amount of money into court that the court considers appropriate to ensure that the offender complies with any prohibition, direction, requirement or condition that is specified in the order;

  • (j) directing the offender to perform community service, subject to any reasonable conditions that may be imposed by the court;

  • (k) directing the offender to pay, in the manner specified by the court, an amount of money to environmental, health or other groups to assist in their work;

  • (l) directing the offender to pay, in the manner specified by the court, an amount of money to an educational institution including for scholarships for students enrolled in studies related to the environment;

  • (m) requiring the offender to comply with any conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for preventing the offender from repeating the same offence or committing another offence under this Part;

  • (n) prohibiting the offender from taking measures to acquire an interest or from applying for any new licence or other authorization under this Act during any period that the court considers appropriate.

• Marginal note:Coming into force and duration of order

  (2) An order made under subsection (1) comes into force on the day on which the order is made or on any other day that the court may determine, but shall not continue in force for more than three years after that day.

• Marginal note:Publication

  (3) If an offender does not comply with an order requiring the publication of facts relating to the offence and the details of the punishment, the Board may, in the manner that the court directed the offender, publish those facts and details and recover the costs of publication from the offender.

• Marginal note:Debt due to Board

  (4) If the Board incurs publication costs under subsection (3), the costs constitute a debt due to the Board and may be recovered in any court of competent jurisdiction.

Marginal note:Variation of sanctions

• 196.1 (1) Subject to subsection (2), if a court has made, in relation to an offender, an order under section 196, the court may, on application by the offender or the Board, require the offender to appear before it and, after hearing the offender and the Board, vary the order in one or more of the following ways that the court considers appropriate because of a change in the offender’s circumstances since the order was made:

  • (a) by making changes to any prohibition, direction, requirement or condition that is specified in the order for any period or by extending the period during which the order is to remain in force, not exceeding one year; or

  • (b) by decreasing the period during which the order is to remain in force or by relieving the offender of compliance with any condition that is specified in the order, either absolutely or partially or for any period.

• Marginal note:Notice

  (2) Before making an order under subsection (1), the court may direct that notice be given to any persons that the court considers to be interested, and may hear any of those persons.

Marginal note:Subsequent applications with leave

196.2 If an application made under subsection 196.1(1) in relation to an offender has been heard by a court, no other application may be made under section 196.1 in relation to the offender except with leave of the court.

Marginal note:Recovery of fines and amounts

196.3 If a person is convicted of an offence under this Part and a fine that is imposed is not paid when required or if a court orders an offender to pay an amount under subsection 196(1) or 196.1(1), the prosecutor may, by filing the conviction or order, as the case may be, enter as a judgment the amount of the fine or the amount ordered to be paid, and costs, if any, in the Supreme Court of Newfoundland and Labrador, and the judgment is enforceable against the person in the same manner as if it were a judgment rendered against them in that Court in civil proceedings.

Administrative Monetary Penalties

Powers

Marginal note:Regulations

• 202.01 (1) Subject to section 7, the Governor in Council may make regulations

  • (a) designating as a violation that may be proceeded with in accordance with this Part

    • (i) the contravention of any specified provision of this Part or of any of its regulations,

    • (ii) the contravention of any direction, requirement, decision or order, or of any direction, requirement, decision or order of a specified class of directions, requirements or orders, made under this Part, or

    • (iii) the failure to comply with any term or condition of

      • (A) an operating licence or authorization, or a specified class of operating licences or authorizations, issued under this Part, or

      • (B) any approval or exemption or a specified class of approvals or exemptions, granted under this Part;

  • (b) respecting the determination of, or the method of determining, the amount payable as the penalty, which may be different for individuals and other persons, for each violation; and

  • (c) respecting the service of documents required or authorized under section 202.06, 202.2 or 202.5, including the manner and proof of service and the circumstances under which documents are considered to be served.

• Marginal note:Maximum

  (2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for a violation shall not be more than $25,000, in the case of an individual, and $100,000, in the case of any other person.

Marginal note:Powers

202.02 The Board may

• (a) establish the form of notices of violation;

• (b) designate persons or classes of persons who are authorized to issue notices of violation;

• (c) establish, in respect of each violation, a short-form description to be used in notices of violation; and

• (d) designate persons or classes of persons to conduct reviews under section 202.4.

Violations

Marginal note:Commission of violation

• 202.03 (1) Every person who contravenes or fails to comply with a provision, direction, requirement, decision or order, or term or condition the contravention of which, or the failure to comply with which, is designated to be a violation by a regulation made under paragraph 202.01(1)(a) commits a violation and is liable to a penalty of an amount to be determined in accordance with the regulations.

• Marginal note:Purpose of penalty

  (2) The purpose of the penalty is to promote compliance with this Part and not to punish.

Marginal note:Liability of directors, officers, etc.

202.04 If a corporation commits a violation, any director, officer, or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty of an amount to be determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Part.

Marginal note:Proof of violation

202.05 In any proceedings under this Part against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee, or agent or mandatary, of the person, whether or not the employee, agent or mandatary is identified or proceeded against in accordance with this Part.

Marginal note:Issuance and service of notice of violation

• 202.06 (1) If a person designated under paragraph 202.02(b) believes on reasonable grounds that a person has committed a violation, the designated person may issue a notice of violation and cause it to be served on the person.

• Marginal note:Contents

  (2) The notice of violation shall

  • (a) name the person that is believed to have committed the violation;

  • (b) set out the relevant facts surrounding the violation;

  • (c) set out the amount of the penalty for the violation;

  • (d) inform the person of their right, under section 202.2, to request a review with respect to the amount of the penalty or the facts of the violation, and of the period within which that right is to be exercised;

  • (e) inform the person of the manner of paying the penalty set out in the notice; and

  • (f) inform the person that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they will be considered to have committed the violation and that they are liable to the penalty set out in the notice.

Rules about Violations

Marginal note:Certain defences not available

• 202.07 (1) A person named in a notice of violation does not have a defence by reason that the person

  • (a) exercised due diligence to prevent the commission of the violation; or

  • (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Part applies in respect of a violation to the extent that it is not inconsistent with this Part.

Marginal note:Continuing violation

202.08 A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

Marginal note:Violation or offence

• 202.09 (1) Proceeding with any act or omission as a violation under this Part precludes proceeding with it as an offence under this Part, and proceeding with it as an offence under this Part precludes proceeding with it as a violation under this Part.

• Marginal note:Violations not offences

  (2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.

Marginal note:Limitation or prescription period

202.1 No notice of violation is to be issued more than two years after the day on which the matter giving rise to the violation occurred.

Reviews

Marginal note:Right to request review

202.2 A person who is served with a notice of violation may, within 30 days after the day on which it is served, or within any longer period that the Board allows, make a request to the Board for a review of the amount of the penalty or the facts of the violation, or both.

Marginal note:Correction or cancellation of notice of violation

202.3 At any time before a request for a review in respect of a notice of violation is received by the Board, a person designated under paragraph 202.02(b) may cancel the notice of violation or correct an error in it.

Marginal note:Review

• 202.4 (1) On receipt of a request made under section 202.2, the Board shall conduct the review or cause the review to be conducted by a person designated under paragraph 202.02(d).

• Marginal note:Restriction

  (2) The Board shall conduct the review if the notice of violation was issued by a person designated under paragraph 202.02(d).

Marginal note:Object of review

• 202.5 (1) The Board or the person conducting the review shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the person committed the violation, or both.

• Marginal note:Determination

  (2) The Board or the person conducting the review shall render a determination and the reasons for it in writing and cause the person who requested the review to be served with a copy of them.

• Marginal note:Correction of penalty

  (3) If the Board or the person conducting the review determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Board or the person, as the case may be, shall correct the amount of the penalty.

• Marginal note:Responsibility

  (4) If the Board or the person conducting the review determines that the person who requested the review committed the violation, the person who requested the review is liable to the penalty as set out in the notice issued under section 202.06 or as set out in the determination if the amount of the penalty was corrected under subsection (3).

• Marginal note:Determination final

  (5) A determination made under this section is final and binding and, subject to review by the Trial Division of the Supreme Court of Newfoundland and Labrador, is not subject to appeal or to review by any court.

Marginal note:Burden of proof

202.6 If the facts of a violation are reviewed, the person who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.

Responsibility

Marginal note:Payment

202.7 If a person pays the penalty set out in a notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.

Marginal note:Failure to act

202.8 A person that neither pays the penalty imposed under this Part nor requests a review within the period referred to in section 202.2 is considered to have committed the violation and is liable to the penalty.

Recovery of Penalties

Marginal note:Debt to Her Majesty

• 202.9 (1) A penalty constitutes a debt due to Her Majesty in right of the Province and may be recovered in the Trial Division of the Supreme Court of Newfoundland and Labrador.

• Marginal note:Limitation period

  (2) No proceedings to recover the debt are to be instituted more than five years after the day on which the debt becomes payable.

Marginal note:Certificate

• 202.91 (1) The Board may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 202.9(1).

• Marginal note:Registration

  (2) Registration in the Trial Division of the Supreme Court of Newfoundland and Labrador of a certificate of non-payment issued under subsection (1) has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.

General

Marginal note:Admissibility of documents

202.92 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 202.06(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.

Marginal note:Publication

202.93 The Board may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.

• Marginal note:Trésor

  (2) Dès que possible après leur perception ou réception par le gouvernement de la province sous le régime de la présente partie, les montants — impôts, taxes, intérêts, amendes ou autres — sont déposés au crédit du receveur général et versés au Trésor selon les modalités prévues, par règlement, par le Conseil du Trésor conformément à la Loi sur la gestion des finances publiques.

• Marginal note:Subsequent fiscal years

  (2) Despite section 37 of the Financial Administration Act, any portion of the amount appropriated under this section may be expended in subsequent fiscal years.

“spill-treating agent”

« agent de traitement »

“spill-treating agent”, except in section 166.5, means a spill-treating agent that is on the list established under section 14.2 of the Canada Oil and Gas Operations Act.

Marginal note:Provincial Minister’s approval

6. Before a regulation is made under subsection 5(1) or 17(4), section 30.1, subsection 35(8), 39(7) or 45(7), section 67, subsection 70(2), section 121, subsection 125(1), 128(1), 153(1), 157(5), 167(2.3), 168(1.02) or 207.01(1) or section 208, 245 or 248, the Federal Minister shall consult the Provincial Minister with respect to the proposed regulation and the regulation shall not be made without the Provincial Minister’s approval.

• Marginal note:Effet de la décision

  (5) La décision du comité est définitive et lie les deux gouvernements.

Cost Recovery

Marginal note:Regulations respecting fees, etc.

• 30.1 (1) Subject to section 6, the Governor in Council may make regulations

  • (a) respecting the fees or charges, or the method of calculating the fees or charges, to be paid for the provision, by the Board, of a service or product under this Act;

  • (b) respecting the fees or charges, or the method of calculating the fees or charges, in respect of any of the Board’s activities under this Act or under the Canadian Environmental Assessment Act, 2012, that are to be paid by

    • (i) a person who makes an application for an authorization under paragraph 142(1)(b) or an application under subsection 143(2), or

    • (ii) the holder of an operating licence issued under paragraph 142(1)(a) or an authorization issued under paragraph 142(1)(b); and

  • (c) respecting the refund of all or part of any fee or charge referred to in paragraph (a) or (b), or the method of calculating that refund.

• Marginal note:Amounts not to exceed cost

  (2) The amounts of the fees or charges referred to in paragraph (1)(a) shall not exceed the cost of providing the services or products.

• Marginal note:Amounts not to exceed cost

  (3) The amounts of the fees or charges referred to in paragraph (1)(b) shall not exceed the cost of the Board’s activities under this Act or under the Canadian Environmental Assessment Act, 2012.

Marginal note:Non-application of User Fees Act

30.2 The User Fees Act does not apply to any fees or charges payable in accordance with regulations made under section 30.1.

Marginal note:Remittance of fees and charges

30.3 One half of the amounts of the fees and charges obtained in accordance with regulations made under section 30.1 shall be paid to the credit of the Receiver General and the other half shall be paid to the credit of Her Majesty in right of the Province, in the time and manner prescribed under those regulations.

• (c) the feedstock requirements of any refining facility located in the Province that was not in place on January 31, 1986 if the feedstock requirements required to satisfy the demand of industrial capacity, as of January 31, 1986, in Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland and Labrador have been met.

Marginal note:Enquête

• 44. (1) Sous réserve des instructions visées au paragraphe 41(1), l’Office peut tenir une enquête publique sur tout aspect de ses attributions ou de l’exercice de ses activités s’il estime qu’il est dans l’intérêt public de le faire.

Public Hearings

Marginal note:Public hearings

44.1 The Board may conduct a public hearing in relation to the exercise of any of its powers or the performance of any of its duties and functions as a responsible authority as defined in subsection 2(1) of the Canadian Environmental Assessment Act, 2012.

Marginal note:Confidentiality

44.2 At any public hearing conducted under section 44.1, the Board may take any measures and make any order that it considers necessary to ensure the confidentiality of any information likely to be disclosed at the hearing if the Board is satisfied that

• (a) disclosure of the information could reasonably be expected to result in a material loss or gain to a person directly affected by the hearing, or to prejudice the person’s competitive position, and the potential harm resulting from the disclosure outweighs the public interest in making the disclosure; or

• (b) the information is financial, commercial, scientific or technical information that is confidential information supplied to the Board and

  • (i) the information has been consistently treated as confidential information by a person directly affected by the hearing, and

  • (ii) the person’s interest in confidentiality outweighs the public interest in its disclosure.

Marginal note:Confidentiality — security

44.3 At any public hearing conducted under section 44.1, the Board may take any measures and make any order that it considers necessary to ensure the confidentiality of information that is likely to be disclosed at the hearing if the Board is satisfied that

• (a) there is a real and substantial risk that disclosure of the information will impair the security of pipelines, as defined in section 138, installations, vessels, aircraft or systems, including computer or communication systems, or methods employed to protect them; and

• (b) the need to prevent disclosure of the information outweighs the public interest in its disclosure.

Marginal note:Exception

44.4 The Board shall not take any measures or make any order under section 44.2 or 44.3 in respect of information or documentation referred to in paragraphs 122(5)(a) to (e) and (i).

• Marginal note:Mesures en cas de défaut

  (4) Malgré les autres dispositions de la présente loi, mais sous réserve du paragraphe (5), le ministre provincial peut, pour l’application du présent article, tant que dure — selon ce que prévoit la loi sur les redevances et ses règlements — le défaut de payer un montant sous le régime du présent article, enjoindre à l’Office :

  • a) de refuser de délivrer tout nouveau titre au défaillant pour toute partie de la zone extracôtière;

  • b) de ne pas autoriser sous le régime de la partie III toute activité de recherche ou de production d’hydrocarbures dans la zone extracôtière et de suspendre toute autorisation déjà donnée;

  • c) d’exercer les pouvoirs visés aux paragraphes 126(1) et (2).

• Marginal note:Trésor

  (2) Dès que possible après leur recouvrement ou réception par l’Office sous le régime du présent article, les montants sont déposés au crédit du receveur général et versés au Trésor selon les modalités prescrites par le Conseil du Trésor conformément à la Loi sur la gestion des finances publiques.

Marginal note:Notice — subsection 122(11)

• 122.1 (1) If the Board intends to disclose any information or documentation under subsection 122(11), the Board shall make every reasonable effort to give the person who provided it written notice of the Board’s intention to disclose it.

• Marginal note:Waiver of notice

  (2) Any person to whom a notice is required to be given under subsection (1) may waive the requirement, and if they have consented to the disclosure they are deemed to have waived the requirement.

• Marginal note:Contents of notice

  (3) A notice given under subsection (1) shall include

  • (a) a statement that the Board intends to disclose information or documentation under subsection 122(11);

  • (b) a description of the information or documentation that was provided by the person to whom the notice is given; and

  • (c) a statement that the person may, within 20 days after the day on which the notice is given, make written representations to the Board as to why the information or documentation, or a portion of it, should not be disclosed.

• Marginal note:Representations

  (4) If a notice is given to a person by the Board under subsection (1), the Board shall

  • (a) give the person the opportunity to make, within 20 days after the day on which the notice is given, written representations to the Board as to why the information or documentation, or a portion of it, should not be disclosed; and

  • (b) after the person has had the opportunity to make representations, but no later than 30 days after the day on which the notice is given, make a decision as to whether or not to disclose the information or documentation and give written notice of the decision to the person.

• Marginal note:Contents of notice of decision to disclose

  (5) A notice given under paragraph (4)(b) of a decision to disclose information or documentation shall include

  • (a) a statement that the person to whom the notice is given may request a review of the decision under subsection (7) within 20 days after the day on which the notice is given; and

  • (b) a statement that if no review is requested under subsection (7) within 20 days after the day on which the notice is given, the Board shall disclose the information or documentation.

• Marginal note:Disclosure of information or documentation

  (6) If, under paragraph (4)(b), the Board decides to disclose the information or documentation, the Board shall disclose it on the expiry of 20 days after a notice is given under that paragraph, unless a review of the decision is requested under subsection (7).

• Marginal note:Review

  (7) Any person to whom the Board is required under paragraph (4)(b) to give a notice of a decision to disclose information or documentation may, within 20 days after the day on which the notice is given, apply to the Supreme Court of Nova Scotia for a review of the decision.

• Marginal note:Hearing in summary way

  (8) An application made under subsection (7) shall be heard and determined in a summary way in accordance with any applicable rules of practice and procedure of that Court.

• Marginal note:Court to take precautions against disclosing

  (9) In any proceedings arising from an application under subsection (7), the Supreme Court of Nova Scotia shall take every reasonable precaution, including, when appropriate, conducting hearings in camera, to avoid the disclosure by the Court or any person of any information or documentation that, under this Act, is privileged or is not to be disclosed.

• (b.1) accountability in accordance with the “polluter pays” principle;

Marginal note:Delegation

141.1 The Board may delegate any of the Board’s powers under section 142, 142.2, 142.3, 143.1, 143.2, 167.1 or 168 to any person, and the person shall exercise those powers in accordance with the terms of the delegation.

Marginal note:Environmental assessment

• 142.02 (1) If an application for an authorization under paragraph 142(1)(b) or an application made under subsection 143(2) is in respect of a physical activity described in subsection (2), the Board shall issue the decision statement referred to in section 54 of the Canadian Environmental Assessment Act, 2012 in respect of the physical activity within 12 months after the day on which the applicant has, in the Board’s opinion, provided a complete application.

• Marginal note:Physical activity

  (2) The physical activity in question is a physical activity that:

  • (a) is carried out in the offshore area;

  • (b) is designated by regulations made under paragraph 84(a) of the Canadian Environmental Assessment Act, 2012 or in an order made under subsection 14(2) of that Act;

  • (c) is one for which the Board is the responsible authority as defined in subsection 2(1) of that Act; and

  • (d) is one in relation to which an environmental assessment was not referred to a review panel under section 38 of that Act.

  It includes any physical activity that is incidental to the physical activity described in paragraphs (a) to (d).

• Marginal note:Excluded period

  (3) If the Board requires the applicant to provide information or undertake a study with respect to the physical activity, the period that is taken by the applicant, in the Board’s opinion, to comply with the requirement is not included in the calculation of the period referred to in subsection (1).

• Marginal note:Public notice

  (4) The Board shall, without delay, make public

  • (a) the date on which the 12-month period referred to in subsection (1) begins; and

  • (b) the dates on which the period referred to in subsection (3) begins and ends.

Marginal note:Participant funding program

142.03 The Board may establish a participant funding program to facilitate the participation of the public in the environmental assessment as defined in subsection 2(1) of the Canadian Environmental Assessment Act, 2012 of any physical activity described in subsection 142.02(2) that meets the condition set out in paragraph 58(1)(a) of that Act and that is the subject of an application for an authorization under paragraph 142(1)(b) or an application made under subsection 143(2).

Financial Requirements

Marginal note:Compliance with certain provisions

142.3 The Board shall, before issuing an authorization for a work or activity referred to in paragraph 142(1)(b), ensure that the applicant has complied with the requirements of subsections 167.1(1) or (2) and 168(1) or (1.01) in respect of that work or activity.

Marginal note:Amendment to Schedule V or VI

• 153.1 (1) The Governor in Council may, by order, amend Schedule V or VI to add, amend or remove a reference to a federal Act or regulation, or to a provision of a federal Act or regulation.

• Marginal note:Recommendation

  (2) The order shall be made on the recommendation of the Federal Minister and every minister responsible for the administration of the provision.

Marginal note:Guidelines and interpretation notes

• 156. (1) The Board may issue and publish, in any manner the Board considers appropriate, guidelines and interpretation notes with respect to the application and administration of sections 45, 142 and 143 and subsection 168(1.01) and any regulations made under sections 30.1 and 153.

Definition of “spill”

• 165. (1) In sections 166 to 170, “spill” means a discharge, emission or escape of petroleum, other than one that is authorized under subsection 166.5(1), the regulations or any other federal law. It does not include a discharge from a vessel to which Part 8 or 9 of the Canada Shipping Act, 2001 applies or from a ship to which Part 6 of the Marine Liability Act applies.

• Definition of “actual loss or damage”

  (2) In section 167, “actual loss or damage” includes loss of income, including future income, and, with respect to any Aboriginal peoples of Canada, loss of hunting, fishing and gathering opportunities. It does not include loss of income recoverable under subsection 42(3) of the Fisheries Act.

• Definition of “debris”

  (3) In sections 167 to 168 and 170, “debris” means any installation or structure that was put in place in the course of any work or activity required to be authorized under paragraph 142(1)(b) and that has been abandoned without an authorization that may be required by or under this Part, or any material that has broken away or been jettisoned or displaced in the course of any of that work or activity.

Marginal note:Canadian Environmental Protection Act, 1999

166.2 Section 123 and subsections 124(1) to (3) of the Canadian Environmental Protection Act, 1999 do not apply in respect of a spill-treating agent.

Marginal note:Fisheries Act — civil liability

166.3 For the purpose of section 42 of the Fisheries Act, if subsection 36(3) of that Act would have been contravened but for subsection 166.1(1),

• (a) subsection 36(3) of that Act is deemed to apply in respect of the deposit of the spill-treating agent;

• (b) the holder of the authorization referred to in paragraph 166.1(1)(a) is deemed to be the only person referred to in paragraph 42(1)(a) of that Act; and

• (c) those persons who caused or contributed to the spill are deemed to be the only persons referred to in paragraph 42(1)(b) of that Act.

Marginal note:Notice

166.4 The Federal Minister shall, as soon as possible after it is made, notify the Provincial Minister and the Board of the making of the list of spill-treating agents and any amendment to that list.

Marginal note:Scientific research

• 166.5 (1) For the purpose of a particular research project pertaining to the use of a spill-treating agent in mitigating the environmental impacts of a spill, the Minister of the Environment may authorize, and establish conditions for, the deposit of a spill-treating agent, oil or oil surrogate if the Federal Minister has obtained the Provincial Minister’s approval.

• Marginal note:Oil surrogate

  (2) The Minister of the Environment shall not authorize the deposit of an oil surrogate unless that Minister determines that the oil surrogate poses fewer safety, health or environmental risks than oil.

• Marginal note:Non-application

  (3) If the conditions set out in the authorization are met, the provisions referred to in section 166.2 and Schedules V and VI do not apply in respect of the spill-treating agent, oil and oil surrogate required for the research project.

Marginal note:Financial resources — certain activities

• 167.1 (1) An applicant for an authorization under paragraph 142(1)(b) for the drilling for or development or production of petroleum shall provide proof, in the prescribed form and manner, that it has the financial resources necessary to pay the greatest of the amounts of the limits of liability referred to in subsection 167(2.2) that apply to it. If the Board considers it necessary, it may determine a greater amount and require proof that the applicant has the financial resources to pay that greater amount.

• Marginal note:Financial resources — other activities

  (2) An applicant for an authorization under paragraph 142(1)(b) for any other work or activity shall provide proof, in the prescribed form and manner, that it has the financial resources necessary to pay an amount that is determined by the Board.

• Marginal note:Loss of non-use value not considered

  (3) When the Board determines an amount under subsection (1) or (2), the Board is not required to consider any potential loss of non-use value relating to a public resource that is affected by a spill or the authorized discharge, emission or escape of petroleum or as a result of debris.

• Marginal note:Continuing obligation

  (4) The holder of an authorization under paragraph 142(1)(b) shall ensure that the proof referred to in subsections (1) and (2) remains in force for the duration of the work or activity in respect of which the authorization is issued.

• Marginal note:Extended obligation

  (5) The holder of an authorization under paragraph 142(1)(b) shall also ensure that the proof referred to in subsection (1) remains in force for a period of one year beginning on the day on which the Board notifies the holder that it has accepted a report submitted by the holder indicating that the last well in respect of which the authorization is issued is abandoned. The Board may reduce that period and may decide that the proof that is to remain in force during that period is proof that the holder has the financial resources necessary to pay an amount that is less than the amount referred to in subsection (1) and that is determined by the Board.

Marginal note:Lesser amount

• 168.1 (1) The Federal Minister may, by order, on the recommendation of the Board and with the Provincial Minister’s approval, approve an amount that is less than the amount referred to in subsection 167(2.2) or paragraph 168(1)(a) in respect of an applicant for, or a holder of, an authorization under paragraph 142(1)(b).

• Marginal note:Financial resources — exception

  (2) If the Federal Minister approves an amount that is less than the amount referred to in subsection 167(2.2) in respect of an applicant for an authorization under paragraph 142(1)(b), that applicant, for the purposes of subsection 167.1(1), shall only provide proof that it has the financial resources necessary to pay the adjusted amount approved by the Federal Minister.

• Marginal note:No contravention

  (3) No applicant for an authorization under paragraph 142(1)(b) contravenes paragraph 168(1)(a) if that applicant provides proof of financial responsibility in the amount that is approved by the Federal Minister under this section.

• Marginal note:Sentencing principles

  (3) 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 found guilty of an offence under this Part:

  • (a) 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 (4); and

  • (b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.

• Marginal note:Aggravating factors

  (4) The aggravating factors are the following:

  • (a) the offence caused harm or risk of harm to human health or safety;

  • (b) the offence caused damage or risk of damage to the environment or to environmental quality;

  • (c) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable component of the environment;

  • (d) the damage or harm caused by the offence is extensive, persistent or irreparable;

  • (e) the offender committed the offence intentionally or recklessly;

  • (f) the offender failed to take reasonable steps to prevent the commission of the offence;

  • (g) by committing the offence or failing to take action to prevent its commission, the offender increased their revenue or decreased their costs or intended to increase their revenue or decrease their costs;

  • (h) the offender has a history of non-compliance with federal or provincial legislation that relates to safety or environmental conservation or protection; and

  • (i) after the commission of the offence, the offender

    • (i) attempted to conceal its commission,

    • (ii) failed to take prompt action to prevent, mitigate or remediate its effects, or

    • (iii) failed to take prompt action to reduce the risk of committing similar offences in the future.

• Marginal note:Absence of aggravating factor

  (4.1) The absence of an aggravating factor set out in subsection (4) is not a mitigating factor.

• Meaning of “damage”

  (4.2) For the purposes of paragraphs (4)(b) to (d), “damage” includes loss of use value and non-use value.

• Marginal note:Reasons

  (4.3) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (4) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision.

Marginal note:Order of court

• 201. (1) If a person is found guilty of an offence under this Part, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, in addition to any other punishment that may be imposed under this Part, make an order that has any or all of the following effects:

  • (a) prohibiting the offender from committing an act or engaging in an activity that may, in the opinion of the court, result in the continuation or repetition of the offence;

  • (b) directing the offender to take any action that the court considers appropriate to remedy or avoid any harm to the environment that results or may result from the act or omission that constituted the offence;

  • (c) directing the offender to carry out environmental effects monitoring in the manner established by the Board or directing the offender to pay, in the manner specified by the court, an amount of money for the purposes of environmental effects monitoring;

  • (d) directing the offender to make changes to their environmental management system that are satisfactory to the Board;

  • (e) directing the offender to have an environmental audit conducted by a person of a class and at the times specified by the Board and directing the offender to remedy any deficiencies revealed during the audit;

  • (f) directing the offender to pay to Her Majesty in right of Canada, for the purpose of promoting the conservation, protection or restoration of the environment, or to pay into the Environmental Damages Fund — an account in the accounts of Canada — an amount of money that the court considers appropriate;

  • (g) directing the offender to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection;

  • (h) directing the offender to notify, at the offender’s own cost and in the manner specified by the court, any person aggrieved or affected by the offender’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;

  • (i) directing the offender to post a bond or pay an amount of money into court that the court considers appropriate to ensure that the offender complies with any prohibition, direction, requirement or condition that is specified in the order;

  • (j) directing the offender to perform community service, subject to any reasonable conditions that may be imposed by the court;

  • (k) directing the offender to pay, in the manner specified by the court, an amount of money to environmental, health or other groups to assist in their work;

  • (l) directing the offender to pay, in the manner specified by the court, an amount of money to an educational institution including for scholarships for students enrolled in studies related to the environment;

  • (m) requiring the offender to comply with any conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for preventing the offender from repeating the same offence or committing another offence under this Part;

  • (n) prohibiting the offender from taking measures to acquire an interest or from applying for any new licence or other authorization under this Act during any period that the court considers appropriate.

• Marginal note:Coming into force and duration of order

  (2) An order made under subsection (1) comes into force on the day on which the order is made or on any other day that the court may determine, but shall not continue in force for more than three years after that day.

• Marginal note:Publication

  (3) If an offender does not comply with an order requiring the publication of facts relating to the offence and the details of the punishment, the Board may, in the manner that the court directed the offender, publish those facts and details and recover the costs of publication from the offender.

• Marginal note:Debt due to Board

  (4) If the Board incurs publication costs under subsection (3), the costs constitute a debt due to the Board and may be recovered in any court of competent jurisdiction.

Marginal note:Variation of sanctions

• 201.1 (1) Subject to subsection (2), if a court has made, in relation to an offender, an order under section 201, the court may, on application by the offender or the Board, require the offender to appear before it and, after hearing the offender and the Board, vary the order in one or more of the following ways that the court considers appropriate because of a change in the offender’s circumstances since the order was made:

  • (a) by making changes to any prohibition, direction, requirement or condition that is specified in the order for any period or by extending the period during which the order is to remain in force, not exceeding one year; or

  • (b) by decreasing the period during which the order is to remain in force or by relieving the offender of compliance with any condition that is specified in the order, either absolutely or partially or for any period.

• Marginal note:Notice

  (2) Before making an order under subsection (1), the court may direct that notice be given to any persons that the court considers to be interested, and may hear any of those persons.

Marginal note:Subsequent applications with leave

201.2 If an application made under subsection 201.1(1) in relation to an offender has been heard by a court, no other application may be made under section 201.1 in relation to the offender except with leave of the court.

Marginal note:Recovery of fines and amounts

201.3 If a person is convicted of an offence under this Part and a fine that is imposed is not paid when required or if a court orders an offender to pay an amount under subsection 201(1) or 201.1(1), the prosecutor may, by filing the conviction or order, as the case may be, enter as a judgment the amount of the fine or the amount ordered to be paid, and costs, if any, in the Supreme Court of Nova Scotia, and the judgment is enforceable against the person in the same manner as if it were a judgment rendered against them in that Court in civil proceedings.

Administrative Monetary Penalties

Powers

Marginal note:Regulations

• 207.01 (1) Subject to section 6, the Governor in Council may make regulations

  • (a) designating as a violation that may be proceeded with in accordance with this Part

    • (i) the contravention of any specified provision of this Part or of any of its regulations,

    • (ii) the contravention of any direction, requirement, decision or order, or of any direction, requirement, decision or order of a specified class of directions, requirements or orders, made under this Part, or

    • (iii) the failure to comply with any term or condition of

      • (A) an operating licence or authorization, or a specified class of operating licences or authorizations, issued under this Part, or

      • (B) any approval or exemption or a specified class of approvals or exemptions, granted under this Part;

  • (b) respecting the determination of, or the method of determining, the amount payable as the penalty, which may be different for individuals and other persons, for each violation; and

  • (c) respecting the service of documents required or authorized under section 207.06, 207.2 or 207.5, including the manner and proof of service and the circumstances under which documents are considered to be served.

• Marginal note:Maximum

  (2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for a violation shall not be more than $25,000, in the case of an individual, and $100,000, in the case of any other person.

Marginal note:Powers

207.02 The Board may

• (a) establish the form of notices of violation;

• (b) designate persons or classes of persons who are authorized to issue notices of violation;

• (c) establish, in respect of each violation, a short-form description to be used in notices of violation; and

• (d) designate persons or classes of persons to conduct reviews under section 207.4.

Violations

Marginal note:Commission of violation

• 207.03 (1) Every person who contravenes or fails to comply with a provision, direction, requirement, decision or order, or term or condition the contravention of which, or the failure to comply with which, is designated to be a violation by a regulation made under paragraph 207.01(1)(a) commits a violation and is liable to a penalty of an amount to be determined in accordance with the regulations.

• Marginal note:Purpose of penalty

  (2) The purpose of the penalty is to promote compliance with this Part and not to punish.

Marginal note:Liability of directors, officers, etc.

207.04 If a corporation commits a violation, any director, officer, or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty of an amount to be determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Part.

Marginal note:Proof of violation

207.05 In any proceedings under this Part against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee, or agent or mandatary, of the person, whether or not the employee, or agent or mandatary is identified or proceeded against in accordance with this Part.

Marginal note:Issuance and service of notice of violation

• 207.06 (1) If a person designated under paragraph 207.02(b) believes on reasonable grounds that a person has committed a violation, the designated person may issue a notice of violation and cause it to be served on the person.

• Marginal note:Contents

  (2) The notice of violation shall

  • (a) name the person that is believed to have committed the violation;

  • (b) set out the relevant facts surrounding the violation;

  • (c) set out the amount of the penalty for the violation;

  • (d) inform the person of their right, under section 207.2, to request a review with respect to the amount of the penalty or the facts of the violation, and of the prescribed period within which that right is to be exercised;

  • (e) inform the person of the manner of paying the penalty set out in the notice; and

  • (f) inform the person that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they will be considered to have committed the violation and that they are liable to the penalty set out in the notice.

Rules About Violations

Marginal note:Certain defences not available

• 207.07 (1) A person named in a notice of violation does not have a defence by reason that the person

  • (a) exercised due diligence to prevent the commission of the violation; or

  • (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Part applies in respect of a violation to the extent that it is not inconsistent with this Part.

Marginal note:Continuing violation

207.08 A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

Marginal note:Violation or offence

• 207.09 (1) Proceeding with any act or omission as a violation under this Part precludes proceeding with it as an offence under this Part, and proceeding with it as an offence under this Part precludes proceeding with it as a violation under this Part.

• Marginal note:Violations not offences

  (2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.

Marginal note:Limitation or prescription period

207.1 No notice of violation is to be issued more than two years after the day on which the matter giving rise to the violation occurred.

Reviews

Marginal note:Right to request review

207.2 A person who is served with a notice of violation may, within 30 days after the day on which it is served, or within any longer period that the Board allows, make a request to the Board for a review of the amount of the penalty or the facts of the violation, or both.

Marginal note:Correction or cancellation of notice of violation

207.3 At any time before a request for a review in respect of a notice of violation is received by the Board, a person designated under paragraph 207.02(b) may cancel the notice of violation or correct an error in it.

Marginal note:Review

• 207.4 (1) On receipt of a request made under section 207.2, the Board shall conduct the review or cause the review to be conducted by a person designated under paragraph 207.02(d).

• Marginal note:Restriction

  (2) The Board shall conduct the review if the notice of violation was issued by a person designated under paragraph 207.02(d).

Marginal note:Object of review

• 207.5 (1) The Board or the person conducting the review shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the person committed the violation, or both.

• Marginal note:Determination

  (2) The Board or the person conducting the review shall render a determination and the reasons for it in writing and cause the person who requested the review to be served with a copy of them.

• Marginal note:Correction of penalty

  (3) If the Board or the person conducting the review determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Board or the person, as the case may be, shall correct the amount of the penalty.

• Marginal note:Responsibility

  (4) If the Board or the person conducting the review determines that the person who requested the review committed the violation, the person who requested the review is liable to the penalty as set out in the notice issued under section 207.06 or as set out in the determination if the amount of the penalty was corrected under subsection (3).

• Marginal note:Determination final

  (5) A determination made under this section is final and binding and, subject to review by the Supreme Court of Nova Scotia, is not subject to appeal or to review by any court.

Marginal note:Burden of proof

207.6 If the facts of a violation are reviewed, the person who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.

Responsibility

Marginal note:Payment

207.7 If a person pays the penalty set out in a notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.

Marginal note:Failure to act

207.8 A person that neither pays the penalty imposed under this Part nor requests a review in the period referred to in section 207.2 is considered to have committed the violation and is liable to the penalty.

Recovery of Penalties

Marginal note:Debt to Her Majesty

• 207.9 (1) A penalty constitutes a debt due to Her Majesty in right of the Province and may be recovered in the Supreme Court of Nova Scotia.

• Marginal note:Limitation period

  (2) No proceedings to recover the debt are to be instituted more than five years after the day on which the debt becomes payable.

Marginal note:Certificate

• 207.91 (1) The Board may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 207.9(1).

• Marginal note:Registration

  (2) Registration in the Supreme Court of Nova Scotia of a certificate of non-payment issued under subsection (1) has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.

General

Marginal note:Admissibility of documents

207.92 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 207.06(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.

Marginal note:Publication

207.93 The Board may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.

• Marginal note:Trésor

  (2) Dès que possible après leur perception ou réception par l’Office sous le régime du présent article, les montants sont déposés au crédit du receveur général et versés au Trésor selon les modalités prévues, par règlement, par le Conseil du Trésor conformément à la Loi sur la gestion des finances publiques.

• Marginal note:Exception

  (5) If the per capita fiscal capacity of the Province in respect of any fiscal year is equal to or greater than the national average per capita fiscal capacity in respect of that fiscal year, no payment shall be made under subsection (1) in respect of that fiscal year. The per capita fiscal capacity of the Province and the national average per capita fiscal capacity shall be determined in accordance with section 247.1.

Marginal note:Definitions

• 247.1 (1) The following definitions apply in this section.

  “Fiscal Arrangements Act”

  « loi de 1977 »

  “Fiscal Arrangements Act” means the Federal-Provincial Fiscal Arrangements and Federal Post-Secondary Education and Health Contributions Act, 1977.

  “national average per capita fiscal capacity”

  « moyenne nationale »

  “national average per capita fiscal capacity” means the per capita fiscal capacity of all of the provinces.

  “province”

  « province »

  “province” does not include Yukon, the Northwest Territories or Nunavut.

• Marginal note:Per capita fiscal capacity of Province and national average

  (2) For the purposes of subsection 247(5), the per capita fiscal capacity of the Province and the national average per capita fiscal capacity in respect of any fiscal year shall be determined by the Minister of Finance by dividing the aggregate of the estimated revenues of the Province or of all provinces, as the case may be, in respect of the fiscal year, as determined in accordance with subsection (3), by the population of the Province or of all provinces, as the case may be, in respect of the fiscal year.

• Marginal note:Estimated revenues

  (3) The aggregate of the estimated revenues of the Province or of all provinces, as the case may be, in respect of any fiscal year shall be determined by

  • (a) describing the sources from which are or may be derived the aggregate of the following revenues, namely:

    • (i) the aggregate of the revenues derived by all provinces in respect of the fiscal year from all sources described in the definition “revenue source” in subsection 4(2) of the Fiscal Arrangements Act as it read on April 1, 1982,

    • (ii) the aggregate of the revenues that are

      • (A) derived by all municipalities, boards, commissions and other local authorities from the sources described in paragraphs (z) and (bb) of the definition “revenue source” in subsection 4(2) of the Fiscal Arrangements Act as it read on April 1, 1982, and

      • (B) deemed by virtue of subsection 4(5) of the Fiscal Arrangements Act as it read on April 1, 1982 to be derived by a province in respect of the fiscal year, and

    • (iii) the aggregate of the revenues derived by all provinces in respect of the fiscal year and by all municipalities, boards, commissions and other local authorities in respect of their financial years ending in the fiscal year that

      • (A) are not included in subparagraph (i) or (ii), and

      • (B) are included in the computation of fiscal equalization payments for the fiscal year under the Fiscal Arrangements Act;

    as those sources are described in the definition “revenue source” in subsection 4(2) of the Fiscal Arrangements Act, varying the description of such sources to take into account the changes and factors referred to in subsection (4);

  • (b) defining the expression “revenue base”, in respect of each distinct source described in paragraph (a), for a province in respect of the fiscal year, that relates to the measure of the relative capacity of the province to derive revenue from that source for that fiscal year,

    • (i) as that expression is defined in respect of that source, in section 6 of the Federal-Provincial Fiscal Arrangements and Established Programs Financing Regulations, 1982, and

    • (ii) varying that definition to take into account the changes and factors referred to in subsection (4);

  • (c) estimating the amount of each revenue base defined in paragraph (b), in respect of each source described in paragraph (a), for the Province or all provinces, as the case may be, for the fiscal year;

  • (d) estimating the amount of the revenues of the Province or all provinces, as the case may be, in respect of each source described in paragraph (a) for the fiscal year by multiplying

    • (i) the national average rate of tax for the fiscal year in respect of that source, and

    • (ii) the amount of the revenue base estimated under paragraph (c) in respect of that source for the Province or all provinces, as the case may be, for the fiscal year; and

  • (e) adding the amounts of the revenues of the Province or of all provinces, as the case may be, estimated under paragraph (d) in respect of all sources described in paragraph (a).

• Marginal note:Changes and factors

  (4) For the purposes of paragraph (3)(a) and subparagraph (3)(b)(ii), the following changes and factors should be taken into account, namely,

  • (a) changes in any laws of a province relating to taxation that apply in respect of fiscal years subsequent to the fiscal year beginning on April 1, 1982;

  • (b) changes to improve the accuracy of comparisons among provinces of relative capacity to derive revenue from any source described in paragraph (3)(a);

  • (c) changes made by statistical agencies to statistical data or methods used to measure the relative capacities of provinces to derive revenue from any such source; and

  • (d) any other factors that, in the opinion of the Minister of Finance, are relevant to the circumstances.

• Marginal note:Average rate of tax

  (5) For the purposes of paragraph (3)(d) the national average rate of tax for a fiscal year in respect of a source is the quotient obtained by dividing

  • (a) the aggregate of the total revenues, as determined by the Minister of Finance, derived by all provinces for the fiscal year from that source, whether or not the total revenues or any portion thereof are included in the computation of the fiscal equalization payments to provinces for the fiscal year under Part I of the Fiscal Arrangements Act

  by

  • (b) the revenue base estimated under paragraph (3)(c) in respect of that source for all provinces for that fiscal year.

• Marginal note:Determination of population

  (6) For the purposes of this section, the population of a province for a fiscal year is the population of that province for that fiscal year, as determined for the purposes of Part I of the Fiscal Arrangements Act.

• Marginal note:Operator’s liability under Nuclear Liability and Compensation Act

  (7) Nothing in this section relieves an operator, as defined in section 2 of the Nuclear Liability and Compensation Act, from any duty or liability imposed on them under that Act.

• Marginal note:Liability under Nuclear Liability and Compensation Act

  (3) Nothing in this section shall be construed as limiting an operator’s liability under the Nuclear Liability and Compensation Act.

Marginal note:Application of Nuclear Liability and Compensation Act

64. Nothing in section 58, 59, 60, 62 or 63 shall be construed as restricting

• (a) any right, obligation or liability of any person arising under the Nuclear Liability and Compensation Act; or

• (b) the jurisdiction of a nuclear claims tribunal established under the Nuclear Liability and Compensation Act.