An Act to amend the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and to make consequential amendments to other Acts (S.C. 2024, c. 20)
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Assented to 2024-10-03
PART 21988, c. 28Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act (continued)
Amendments to the Act (continued)
171 (1) Subsection 142.1(1) of the French version of the Act is replaced by the following:
Marginal note:Droit d’accès
142.1 (1) Sous réserve du paragraphe (2), toute personne peut pénétrer dans la zone extracôtière et y exercer les activités autorisées sous le régime de l’alinéa 142(1)b) pour la recherche et l’exploitation de pétrole ou de gaz.
(2) Subsection 142.1(2) of the Act is replaced by the following:
Marginal note:Right of entry — offshore renewable energy
(1.1) Subject to subsection (2), any person may, for the purpose of carrying on an offshore renewable energy project, enter on and use any portion of the offshore area in order to carry on a work or activity authorized under subsection 142.011(1).
Marginal note:Right of entry — abandoned facilities
(1.2) Subject to subsection (2), any person may enter on and use any portion of the offshore area in order to make contact with, alter or remove an abandoned facility if they have been authorized to do so under subsection 188.3(2).
Marginal note:Restriction
(2) If a person occupies a portion of the offshore area under a lawful right or title, other than an authorization under paragraph 142(1)(b) or subsection 142.011(1) or an interest as defined in section 49, no person may enter on or use that portion for a purpose referred to in any of subsections (1) to (1.2) without the consent of the occupier or, if consent has been refused, except in accordance with the terms and conditions imposed by a decision of an arbitrator made in accordance with the regulations.
172 Section 142.2 of the Act is replaced by the following:
Marginal note:Safety — petroleum operations
142.2 (1) The Regulator shall, before issuing an authorization for a work or activity referred to in paragraph 142(1)(b), consider the safety of the work or activity by reviewing, in consultation with the Chief Safety Officer, the system as a whole and its components, including its structures, facilities, equipment, operating procedures and personnel.
Marginal note:Safety — offshore renewable energy operations
(2) The Regulator shall, before a work or activity referred to in subsection 142.011(1) commences, consider the safety of the work or activity by reviewing, in consultation with the Chief Safety Officer, the system as a whole and its components, including its structures, facilities, equipment, operating procedures and personnel.
173 Section 142.3 of the Act is replaced by the following:
Marginal note:Compliance — petroleum
142.3 (1) The Regulator 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:Compliance — offshore renewable energy
(2) The Regulator shall ensure that an applicant or holder of an authorization under subsection 142.011(1) has, prior to a date determined by regulations or, in the absence of regulations, prior to commencing a work or activity under that authorization, complied with the requirements of subsections 188.2(1) and 188.21(1) in respect of that work or activity.
174 Section 143 of the Act is amended by adding the following after subsection (6):
Marginal note:Transboundary pool
(7) The definitions in section 171 also apply in subsections (8) to (12).
Marginal note:Approval subject to agreement
(8) Despite subsection (4), a development plan submitted for approval in respect of a work or activity to be carried out in a transboundary pool that is the subject of a joint exploitation agreement is not to be approved by the Regulator unless the appropriate authority has agreed to its content. The approval of Part I of that development plan is subject to sections 32 to 37 — or in respect of any transboundary pool that extends into the jurisdiction of a foreign government, to the consent of the Federal Minister in consultation with the Provincial Minister — and any requirements that the Regulator and appropriate authority 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 Regulator or the appropriate authority — or in respect of any transboundary pool extending into the jurisdiction of a foreign government, the Federal Minister after having consulted the Minister of Foreign Affairs and the Provincial Minister — may refer the matter to an expert in accordance with section 188.16.
Marginal note:Submissions regarding Part I
(10) Any submissions to the expert by the Regulator regarding Part I of the development plan are subject to sections 32 to 37. In respect of any transboundary pool extending into the jurisdiction of a foreign government, the submissions are subject to the approval of the Federal Minister in consultation with the Provincial Minister.
Marginal note:Expert’s decision
(11) The expert’s decision is deemed to be approval of the plan by the Regulator and approval of Part I of that plan by the Federal Minister and the Provincial Minister, or in the case of any transboundary pool extending into the jurisdiction of a foreign government, by only the Federal Minister.
Marginal note:Amendment to development plan
(12) Subsections (7) to (11) apply, with any necessary modifications, to a proposed amendment to a development plan to which a work or activity in a transboundary pool relates or to any requirement to which the approval of the plan is subject.
175 (1) The portion of subsection 143.1(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Declaration by applicant — petroleum
143.1 (1) No authorization under paragraph 142(1)(b) shall be issued unless the Regulator has received, from the applicant for the authorization, a declaration in the form fixed by the Regulator that states that
(2) Subsection 143.1(3) of the Act is replaced by the following:
Marginal note:Declaration by applicant or holder — offshore renewable energy
(2) An applicant or holder of an authorization under subsection 142.011(1) shall, prior to a date determined by regulations or, in the absence of regulations, by the Regulator, provide the Regulator with a declaration in the form fixed by it that states that
(a) the equipment and facilities that are to be used in the work or activity to be authorized are fit for the purposes for which they are to be used, the operating procedures relating to them are appropriate for those uses, and the personnel who are to be employed in connection with them are qualified and competent for their employment; and
(b) the applicant or holder shall ensure, so long as the work or activity that is authorized continues, that the equipment and facilities continue to be fit for the purposes for which they are used, the operating procedures continue to be appropriate for those uses, and the personnel continue to be so qualified and competent.
Marginal note:Changes
(3) If the equipment, an installation, a facility, the operating procedures or any of the personnel specified in a declaration changes and no longer conforms to the declaration, the holder of the authorization that provided the declaration shall provide the Regulator with a new declaration as soon as the circumstances permit after the change occurs.
176 The heading before section 143.2 of the Act is replaced by the following:
Petroleum-related Certificates
177 (1) Subsection 144.2(1) of the French version of the Act is replaced by the following:
Marginal note:Propriété
144.2 (1) La propriété des hydrocarbures produits au cours d’essais d’écoulement de formation prolongés revient à la personne qui les effectue conformément à une autorisation délivrée en application de l’alinéa 142(1) b), aux approbations et conditions dont cette autorisation dépend ou aux règlements, même si elle n’est pas titulaire de la licence de production requise par la partie II.
(2) Subsection 144.2(3) of the French version of the Act is replaced by the following:
Marginal note:Réserve
(3) Le présent article ne s’applique qu’aux essais d’écoulement de formation prolongés dont les résultats donnent suffisamment de renseignements pour la détermination du meilleur procédé de récupération pour le réservoir, de la capacité du réservoir ou des limites de productivité de tout puits d’exploitation du réservoir et qui ne mettent pas en danger la récupération finale pour ce réservoir.
178 The heading “Regulation of Operations” before section 153 of the Act is replaced by the following:
Regulation of Operations — Petroleum
179 (1) Paragraph 153(1)(a) of the Act is replaced by the following:
(a) defining, in relation to petroleum-related works or activities, “oil” and “gas” for the purposes of Divisions I and II, “installation” and “equipment” for the purposes of sections 143.1 and 143.2 and “serious” for the purposes of section 170;
(2) Subparagraph 153(1)(c)(ii) of the Act is replaced by the following:
(ii) the removal of petroleum from the offshore area, including in relation to the management of access by third parties to existing offshore infrastructure for the purpose of storing, processing and transporting petroleum and in relation to the amounts that may be charged for that access, and
(3) Paragraph 153(1)(d) of the Act is replaced by the following:
(d) concerning arbitration relating to petroleum-related works or activities for the purposes of subsection 142.1(2), including the costs of or incurred in relation to such arbitrations;
(4) Paragraph 153(1)(g) of the Act is replaced by the following:
(g) prohibiting, in relation to petroleum-related works or activities, the introduction into the environment of substances, classes of substances and forms of energy, in prescribed circumstances;
(5) Paragraphs 153(1)(h.3) and (i) of the Act are replaced by the following:
(h.3) concerning the creation, conservation and production of records relating to petroleum-related works or activities; and
(i) prescribing, in relation to petroleum-related works or activities, anything that is required to be prescribed for the purposes of this Part.
180 Section 154 of the Act is repealed.
181 (1) Subsection 156(1) of the Act is replaced by the following:
Marginal note:Guidelines and interpretation notes
156 (1) The Regulator may issue and publish, in any manner the Regulator 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 respecting petroleum-related works or activities made under sections 30.1 and 153.
(2) Subsection 156(2) of the French version of the Act is replaced by the following:
Marginal note:Présomption
(2) Les lignes directrices et textes interprétatifs sont réputés ne pas être des textes réglementaires au sens de la Loi sur les textes réglementaires.
182 Subsections 170(1) and (1.1) of the Act are replaced by the following:
Marginal note:Inquiries
170 (1) If a spill or debris or an accident or incident related to any activity to which this Division applies occurs or is found in any portion of the offshore area and results in death or injury or danger to public safety or the environment, the Regulator may direct an inquiry to be made and may authorize any person it deems qualified to conduct the inquiry.
Marginal note:Mandatory inquiry
(1.1) If a spill or debris or an accident or incident related to any activity to which this Division applies occurs or is found in any portion of the offshore area and is serious, as defined by regulation, the Regulator shall direct that an inquiry referred to in subsection (1) be made and shall ensure that the person who conducts the inquiry is not employed by the Regulator.
183 The heading of Division II of Part III of the Act is replaced by the following:
Petroleum Production Arrangements
Definitions
184 (1) The definition unitization order in section 171 of the Act is replaced by the following:
- unitization order
unitization order means an order made under section 181 or subsection 188.12(1); (arrêté d’union)
(2) Section 171 of the Act is amended by adding the following in alphabetical order:
- appropriate authority
appropriate authority means
(a) before the determination of whether a transboundary pool exists is made and, if applicable, its boundaries have been delineated, the authority that is responsible for the jurisdiction
(i) adjoining the portion of the perimeter where the drilling took place or where a pool exists, and
(ii) into which there is reason to believe that, based on the data obtained from any drilling, the pool extends, and
(b) after that determination is made, the authority that is responsible for the jurisdiction into which the pool extends; (organisme de réglementation concerné)
- authority
authority means the Government of Canada, a government of a province, a foreign government or any of their agencies or a federal-provincial regulatory agency that has administrative responsibility for the exploration and exploitation of petroleum in the area adjoining the perimeter; (organisme de réglementation)
- expert
expert means a person who is appointed under subsection 188.16(2) and includes an expert panel constituted under subsection 188.16(3) or a person or arbitral tribunal who is appointed in accordance with any applicable treaty referred to under subsection 188.16(9); (expert)
- perimeter
perimeter means the portion of the offshore area that is within 10 nautical miles of the limit of that offshore area; (bande limitrophe)
- transboundary
transboundary, in relation to a pool, means extending beyond the Regulator’s jurisdiction under this Act; (transfrontalier)
185 The Act is amended by adding the following after section 188:
Transboundary Pools
Determination and Delineation
Marginal note:Information
188.01 (1) If an exploratory well, as defined in subsection 122(1), is drilled in the perimeter, the Regulator shall provide the appropriate authority, in the prescribed time and manner, with any information in its possession, including any prescribed information, pertinent to its determination of whether a transboundary pool exists and the delineation of it.
Marginal note:Information in advance
(2) The Regulator shall provide the Federal Minister and the Provincial Minister with any information referred to in subsection (1) before providing it to the appropriate authority.
Marginal note:Additional information
(3) After providing any information referred to in subsection (1) in the prescribed time, the Regulator shall, on request, provide the appropriate authority with any additional information in its possession that is pertinent to its determination of the existence of a transboundary pool and the delineation of it.
Marginal note:Notice — pool
188.02 (1) If the data obtained from any drilling in the perimeter provides sufficient information for the Regulator to determine whether a pool exists, the Regulator shall notify the appropriate authority as soon as feasible of its determination.
Marginal note:Notice — transboundary pool
(2) If the Regulator determines that a pool exists, the Regulator 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
(3) The Regulator shall, before it notifies the appropriate authority under subsection (1), provide the Federal Minister and the Provincial Minister with the reasons for its determination and opinion, if any.
Marginal note:Timeline
(4) The notice shall be given no later than one year after the Regulator receives the data from three drillings of the same geological feature in the perimeter.
Marginal note:Information received by Regulator
188.03 (1) If the Regulator receives a notice from an authority indicating the authority’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 Regulator shall, within 90 days after receiving the notice, inform the authority of its agreement or disagreement with the determination or opinion set out in the notice.
Marginal note:Reasons
(2) If the Regulator disagrees with the content of the notice, it shall provide the authority with the reasons for its disagreement.
Marginal note:Information in advance
(3) The Regulator shall, before it informs the authority under subsection (1), provide the Federal Minister and the Provincial Minister of its agreement or disagreement and its reasons, if any.
Marginal note:Determination and delineation
188.04 (1) If, after receiving a notice under section 188.02 or 188.03, the Regulator and the authority in question agree that a pool exists, the Regulator and that authority shall jointly determine whether that pool is transboundary and, if so, they shall jointly delineate its boundaries.
Marginal note:Disagreement
(2) The Regulator or the authority — or in respect of any transboundary pool extending into the jurisdiction of a foreign government, the Federal Minister after consultations with the Minister of Foreign Affairs and the Provincial Minister — may, if they disagree about whether a pool exists, whether the pool is transboundary or its delineation, refer the matter to an expert and shall do so no later than 180 days after the day on which the Regulator issues a notice under subsection 188.02(1) or the authority issues an equivalent notice.
Marginal note:Notification to Ministers
(3) The Regulator shall, with respect to subsection (2), inform the Federal Minister and the Provincial Minister
(a) that the Regulator intends to refer the matter to an expert; or
(b) that the authority has referred the matter to an expert.
Marginal note:Notification to the Provincial Minister
(4) The Federal Minister shall, with respect to subsection (2) and any transboundary pool extending into the jurisdiction of a foreign government, inform the Provincial Minister that the foreign government has referred the matter to an expert.
Agreements Relating to Joint Exploitation
Marginal note:Single pool
188.05 (1) A transboundary pool is to be exploited as a single pool.
Marginal note:Conditions for joint exploitation
(2) The exploitation of a transboundary pool is subject to a joint exploitation agreement having been entered into and to a unit agreement and a unit operating agreement having been entered into and approved under subsection 188.08(4) or 188.12(4).
Marginal note:Joint exploitation agreement prevails
(3) The joint exploitation agreement prevails over the unit agreement and the unit operating agreement to the extent of any inconsistency between them.
Marginal note:Joint exploitation agreement
188.06 (1) Subject to subsection (2), the Regulator and the appropriate authority may enter into a joint exploitation agreement providing for the exploitation of a transboundary pool as a single pool. The agreement shall include any matters provided for by regulation.
Marginal note:Advice to Ministers
(2) In the case of any transboundary pool extending into the jurisdiction of a foreign government, the Regulator shall provide advice in respect of the exploitation of that transboundary pool to the Federal Minister and the Provincial Minister, who may enter into a joint exploitation agreement with the appropriate authority.
Marginal note:Intention to start production
188.07 (1) If an interest owner, as defined in section 49, advises the Regulator, including by way of an application under subsection 84(1) or paragraph 142(1)(b), that it intends to start production of petroleum from a transboundary pool, the Regulator shall notify the appropriate authority as soon as feasible of the interest owner’s intention.
Marginal note:Notification of intention
(2) The Regulator shall, before notifying the appropriate authority of the interest owner’s intention to start production of petroleum from the transboundary pool, notify the Federal Minister and the Provincial Minister of that intention.
Marginal note:Referral to expert
(3) The appropriate authority or the Regulator — or in respect of any transboundary pool extending into the jurisdiction of a foreign government, the Federal Minister after consultation with the Minister of Foreign Affairs and the Provincial Minister — may, if they have not yet entered into a joint exploitation agreement within a period of 180 days after the Regulator’s notice was given under subsection (1), refer the matter of determining the particulars of the agreement to an expert. However, they may agree to refer the matter to an expert any time before the period ends.
Marginal note:Unit agreement
188.08 (1) The royalty owners and the working interest owners in a transboundary pool may enter into a unit agreement and, once it is approved, shall operate their interests in accordance with it or any amendment to it.
Marginal note:Unit operating agreement
(2) The working interest owners in a transboundary pool may enter into a unit operating agreement and, once it is approved, shall operate their interests in accordance with it or any amendment to it.
Marginal note:Content
(3) The unit agreement shall include the details referred to in paragraphs 180(2)(a) to (d) and the unit operating agreement shall include the details referred to in paragraphs 180(3)(a) to (e).
Marginal note:Approval
(4) The Regulator and the appropriate authority may approve the unit agreement if all the royalty owners and all the working interest owners in the transboundary pool are parties to it; the Regulator and the appropriate authority may approve the unit operating agreement if all the working interest owners in the transboundary pool are parties to it.
Marginal note:Condition precedent
(5) An authorization under paragraph 142(1)(b) for a work or activity proposed to be carried on in relation to the exploitation of a transboundary pool shall not be issued if the unit agreement and the unit operating agreement have not been jointly approved by the Regulator and the appropriate authority.
Marginal note:Applicable provisions
(6) Subsections 177(2) and (3) apply to the unit agreement.
Marginal note:Order to enter into agreements
188.09 When a joint exploitation agreement is entered into in respect of a transboundary pool, the Regulator shall order the working interest owners in the portion of the pool that is in its jurisdiction to enter into a unit agreement and a unit operating agreement with any other working interest owner in the pool if they have not already done so.
Marginal note:Application for unitization order
188.1 (1) One or more working interest owners who are parties to a unit agreement and a unit operating agreement and own 65% or more of the working interests in a transboundary pool may apply for a unitization order with respect to the agreements.
Marginal note:Content and submission of application
(2) The application shall be submitted to both the Regulator and the appropriate authority. It shall include the documents and statements referred to in subsection 180(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 Regulator and the appropriate authority shall, for the purposes of section 188.11, appoint an expert in accordance with subsections 188.16(2) to (4).
Marginal note:Appointment of expert
(4) In respect of any transboundary pool extending into the jurisdiction of a foreign government, the Federal Minister shall, after consultation with the Provincial Minister, agree with the appropriate authority on the appointment of an expert in accordance with subsection 188.16(9).
Marginal note:Hearing
188.11 (1) Once seized of the application under section 188.1, 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 Regulator and appropriate authority
(a) order that the unit agreement be 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 those owners, and that the unit operating agreement be 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 those owners; and
(b) include in the order any variations to the unit agreement or unit operating agreement determined necessary by the expert to allow for the more efficient or more economical production of petroleum from the unitized zone.
Marginal note:Exception
(3) Despite subsection (2), the expert shall end the hearing and request that the Regulator and the appropriate authority take the measures referred to in paragraph (2)(a) if the expert finds that
(a) on the day the hearing begins,
(i) the unit agreement and the unit operating agreement have been executed by one or more working interest owners who own 65% or more of the working interests in the unit area, and
(ii) the unit agreement has been executed by one or more royalty owners who own 65% or more of the royalty interests in the unit area; and
(b) the unitization order applied for would allow for the more efficient or more economical production of petroleum from the unitized zone.
Marginal note:Measures
(4) In respect of any transboundary pool extending into the jurisdiction of a foreign government, the interested persons referred to in subsection (1) are representatives of each country in question and, on the conclusion of the hearing, the expert shall request that the interested persons ensure that the Regulator and the appropriate authority take the measures referred to in subsection (2) or (3).
Marginal note:Unitization order
188.12 (1) The Regulator shall issue a unitization order in accordance with the expert’s request made under subsections 188.11(2) to (4).
Marginal note:Effect of unitization order
(2) The unit agreement and the unit operating agreement have the effect given to them by the unitization order.
Marginal note:Equivalent order
(3) A unitization order becomes effective only if the appropriate authority has issued an equivalent order.
Marginal note:Joint approval
(4) The issuance of a unitization order by the Regulator and of an equivalent order by the appropriate authority 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 established 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 Regulator shall immediately revoke a unitization order varying a unit agreement or a unit operating agreement if, before the effective date of that order, the party who applied for a unitization order under subsection 188.1(1) files with the Regulator a notice withdrawing the application on behalf of the working interest owners or there are filed with the Regulator 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 working interests in the unit area and are part of the group that owns 65% or more of the working interests as described in subparagraph 188.11(3)(a)(i), and
(ii) one or more royalty owners who own in total more than 25% of the working interest in the unit area and are part of the group that owns 65% or more of the royalty interests as described in subparagraph 188.11(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 working interests in the unit area and are part of the group that owns 65% or more of the working interests as described in subparagraph 188.11(3)(a)(i).
Marginal note:Technical defects in unitization order
(7) A unitization order is not invalid by reason only of the absence of notice or of any irregularities in giving notice to any owner in respect of the application for the order or any proceedings leading to the making of the order.
Marginal note:Production prohibited except in accord with unitization order
(8) After the date on which a unitization order comes into effect and while the order remains in force, no person shall carry on any operations within the unit area for the purpose of drilling for or producing petroleum from the unitized zone, except in accordance with the provisions of the unit agreement and the unit operating agreement.
Marginal note:Not statutory instruments
(9) The unitization order is not a statutory instrument for the purposes of the Statutory Instruments Act.
Marginal note:Amending unitization order
188.13 (1) A unitization order may be amended on the application of a working interest owner submitted to both the Regulator and the appropriate authority.
Marginal note:Appointment of expert
(2) The Regulator and the appropriate authority shall, for the purposes of this section, appoint an expert in accordance with subsections 188.16(2) to (4). In the case of any transboundary pool extending into the jurisdiction of a foreign government, the Federal Minister, after consultation with the Provincial Minister, shall agree with the appropriate authority on the appointment of an expert in accordance with subsection 188.16(9).
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 Regulator amend the unitization order in accordance with the proposed amendment and include in the order any variations to it determined necessary by the expert to allow for the more efficient or more economical production of petroleum from the unitized zone. If the expert makes such a request, the expert shall also request that the appropriate authority amend its equivalent order in the same way.
Marginal note:Exception — short hearing
(5) If the expert finds that, on the day on which the hearing begins, one or more working interest owners who own 65% or more of the working interests and one or more royalty owners who own 65% or more of the royalty interests in the unit area have consented to the proposed amendment, the expert may end the hearing and request that the Regulator amend the unitization order in accordance with the amendment. If the expert makes such a request, the expert shall also request that the appropriate authority amend its equivalent order in the same way.
Marginal note:Transboundary pools
(6) In respect of any transboundary pool extending into the jurisdiction of a foreign government, the interested persons referred to in subsection (3) are representatives of each country in question and, on the conclusion of the hearing, the expert shall request that the interested persons ensure that the Regulator and the appropriate authority take the measures referred to in subsections (4) and (5).
Marginal note:Tract participation ratios
188.14 No amendment shall be made under section 188.13 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
188.15 The percentages of interests referred to in subsections 188.1(1), 188.11(3), 188.12(6) and 188.13(5) shall be determined in accordance with section 187.
Referral to Expert
Marginal note:Notice
188.16 (1) The party that intends to refer a matter to an expert under subsections 45(10), 143(9), 188.04(2) and 188.07(3) shall notify the other party of their intention.
Marginal note:Appointment — single expert
(2) Within 30 days after notice is given under subsection (1), or of the application made under subsection 188.1(1) or 188.13(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 member to an expert panel and those experts shall, in turn, jointly appoint an additional expert as chairperson. If the members fail to agree on the appointment of a chairperson within a period of 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 end of that period. Once the chairperson is appointed, the expert panel shall be seized of the matter.
Marginal note:Conditions for appointment of 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) In the case of an expert panel, decisions 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 decisions 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 Regulator when their activities to which the records relate have ceased.
Marginal note:Expert — international treaty
(9) In the case of a transboundary pool extending into the jurisdiction of a foreign government, the appointment of an expert and the making of decisions by them are to be made in accordance with any applicable international treaty respecting the exploration and exploitation of transboundary pools, as amended from time to time.
Marginal note:Costs
(10) In the circumstances described in subsection (9), Canada and the foreign government shall share equally both the expert’s fees and costs and the costs of the expert’s proceedings. With respect to the portion of those costs and fees to be paid by Canada, the governments of Canada and of the Province are to share the expert’s fees and costs equally and, unless otherwise agreed, the costs of the proceedings are also to be shared equally.
Marginal note:Expert’s powers
(11) An expert has the powers necessary to carry out their functions under this Act.
DIVISION II.1Regulation of Operations — Offshore Renewable Energy
Debris
Marginal note:Definition of debris
188.17 (1) In sections 188.18 to 188.2 and 188.23, debris means
(a) any facility or structure that was put in place in the course of any work or activity required to be authorized under subsection 142.011(1), other than a site assessment activity, and that has been abandoned without an authorization that may be required by or under this Part, or that has been abandoned in a way that did not comply with such an authorization; or
(b) any material that has broken away or been jettisoned or displaced in the course of any of that work or activity or from an abandoned facility.
Marginal note:Definition of actual loss or damage
(2) In section 188.19, actual loss or damage includes loss of income, including future income, and, with respect to any Indigenous 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.
Marginal note:Debris prohibited
188.18 (1) No person shall cause or permit debris to be left in any portion of the offshore area.
Marginal note:Duty to report debris
(2) If there is debris in any portion of the offshore area, any person carrying on any work or activity required to be authorized under subsection 142.011(1) in the area in which the debris is left shall, in the manner prescribed, report the debris to the Chief Conservation Officer.
Marginal note:Duty to take reasonable measures
(3) Every person required to report debris under subsection (2) shall, as soon as feasible, take all reasonable measures consistent with safety and the protection of health and the environment to prevent any further debris from accumulating, to repair or remedy any condition resulting from the debris and to reduce or mitigate any damage or danger that results or may reasonably be expected to result from the debris.
Marginal note:Taking emergency action
(4) The Chief Conservation Officer may take any action that is necessary, or direct that it be taken by any person, if the Chief Conservation Officer is satisfied on reasonable grounds that
(a) there is debris in any portion of the offshore area and immediate action is necessary in order to effect any reasonable measures referred to in subsection (3); and
(b) the action is not being taken or will not be taken under subsection (3).
Marginal note:Taking over management
(5) For the purposes of subsection (4), the Chief Conservation Officer may authorize and direct any person whose services are necessary to enter the area where the debris has been left and take over the management and control of any work or activity being carried on in that area.
Marginal note:Managing work or activity
(6) A person authorized and directed to take over the management and control of any work or activity under subsection (5) shall manage and control that work or activity and take all reasonable measures referred to in subsection (3) in relation to the debris.
Marginal note:Costs
(7) Any costs incurred under subsection (6) shall be borne by the person who obtained an authorization under subsection 142.011(1) in respect of the work or activity from which the debris originated and, until paid, constitute a debt recoverable by action in any court of competent jurisdiction as a debt due to the Regulator.
Marginal note:Recovery of costs
(8) If a person, other than a person referred to in subsection (7), takes a measure or an action under subsection (3) or (4), the person may recover from His Majesty in right of Canada the costs and expenses reasonably incurred by that person in taking the measure or action.
Marginal note:Personal liability
(9) No person required, directed or authorized to act under this section is personally liable either civilly or criminally in respect of any act or omission in the course of complying with this section unless it is shown that the person did not act reasonably in the circumstances.
Marginal note:Recovery of loss, damage, costs or expenses
188.19 (1) If, as a result of debris or as a result of any action or measure taken in relation to debris, there is a loss of non-use value relating to a public resource or any person incurs actual loss or damage or if His Majesty in right of Canada or the Province reasonably incurs any costs or expenses in taking any action or measure in relation to debris,
(a) all persons to whose fault or negligence the debris is attributable or who are by law responsible for others to whose fault or negligence the debris is attributable are jointly and severally liable, to the extent determined according to the degree of the fault or negligence proved against them, for that loss, actual loss or damage, and for those costs and expenses;
(b) the person who is required to obtain an authorization under subsection 142.011(1) in respect of the work or activity from which the debris originated is liable, without proof of fault or negligence, up to the applicable limit of liability established under this section, for that loss, actual loss or damage, and for those costs and expenses; and
(c) the person who carried out a work or activity for which an authorization under subsection 142.011(1) was required in a facility that is now an abandoned facility from which the debris originated is liable, without proof of fault or negligence, up to the applicable limit of liability established under this section, for that loss, actual loss or damage, and for those costs and expenses.
Marginal note:Vicarious liability for contractors
(2) A person who is required to obtain an authorization under subsection 142.011(1) and who retains, to carry on a work or activity in respect of which the authorization is required, the services of a contractor to whom paragraph (1)(a) applies is jointly and severally liable with that contractor for any actual loss or damage, costs and expenses and loss of non-use value described in subsection (1).
Marginal note:Limit of liability
(3) For the purposes of paragraphs (1)(b) and (c), the limit of liability is $1 billion.
Marginal note:Lesser amount — Federal Minister’s order
(4) Despite subsection (3), the Federal Minister may, by order, on the Regulator’s recommendation and with the Provincial Minister’s approval, establish a limit of liability that is lower than the limit referred to in that subsection in respect of persons carrying out a work or activity relating to offshore renewable energy projects that is specified in the order or of persons who carried out that work or activity in a facility that is now an abandoned facility.
Marginal note:Lesser amount — Regulator
(5) Despite subsections (3) and (4), the Regulator may, in the absence of regulations, establish a lower limit of liability for the purposes of paragraph (1)(c).
Marginal note:Limits of liability — regulations
(6) Subject to section 6, the Governor in Council may, by regulation,
(a) establish a limit of liability that is higher than the limit referred to in subsection (3);
(b) establish a limit of liability that is lower than the limit referred to in subsection (3) for the purposes of paragraph (1)(c); and
(c) limit the amount of time during which a person referred to in paragraph (1)(c) may be held liable under that paragraph.
Marginal note:Liability under another law — paragraph (1)(b) or (c)
(7) If a person is liable under paragraph (1)(b) or (c) with respect to an occurrence and the person is also liable under any other Act, without proof of fault or negligence, for the same occurrence, the person is liable up to the greater of the applicable limit of liability that is set out in subsection (3) and the limit up to which the person is liable under the other Act. If the other Act does not set out a limit of liability, the limit set out in subsection (3) does not apply.
Marginal note:Costs and expenses not recoverable under Fisheries Act
(8) The costs and expenses that are recoverable by His Majesty in right of Canada or the Province under this section are not recoverable under subsection 42(1) of the Fisheries Act.
Marginal note:Action — loss of non-use value
(9) Only His Majesty in right of Canada or the Province may bring an action to recover a loss of non-use value described in subsection (1).
Marginal note:Claims
(10) All claims under this section may be sued for and recovered in any court of competent jurisdiction in Canada. Claims in favour of persons incurring actual loss or damage described in subsection (1) are to be distributed pro rata and rank in priority over claims for costs and expenses described in that subsection, and the claims for costs and expenses rank in priority over claims to recover a loss of non-use value described in that subsection.
Marginal note:Saving
(11) Subject to subsections (8) and (9), nothing in this section suspends or limits
(a) any legal liability or remedy for an act or omission by reason only that the act or omission is an offence under this Act or gives rise to liability under this section;
(b) any recourse, indemnity or relief available at law to a person who is liable under this section against any other person; or
(c) the operation of any applicable law or rule of law that is not inconsistent with this section.
Marginal note:Limitation period
(12) Proceedings in respect of claims under this section may be instituted no later than the third anniversary of the day on which the loss, damage, costs or expenses occurred but in no case after the sixth anniversary of the day on which the facility, equipment or system in question was abandoned or the material in question broke away or was jettisoned or displaced.
Marginal note:Financial resources
188.2 (1) An applicant for an authorization under subsection 142.011(1) shall provide proof that they have the financial resources necessary to pay an amount that is determined by the Regulator. The proof shall be in the form and manner that are prescribed or, in the absence of regulations, that are specified by the Regulator.
Marginal note:Loss of non-use value
(2) In determining the amount, the Regulator is not required to consider any potential loss of non-use value relating to a public resource that is affected as a result of debris.
Marginal note:Continuing obligation
(3) The holder of the authorization shall ensure that the proof referred to in subsection (1) remains in force for the duration of the work or activity in respect of which the authorization is issued.
Marginal note:Proof of financial responsibility
188.21 (1) An applicant for an authorization under subsection 142.011(1) shall provide proof of financial responsibility in an amount that is determined by the Regulator. The proof shall be in the form of a letter of credit, guarantee or indemnity bond or in any other form satisfactory to the Regulator.
Marginal note:Continuing obligation
(2) The holder of the authorization shall ensure that the proof of financial responsibility remains in force for the duration of the work or activity in respect of which the authorization is issued.
Marginal note:Payment of claims
(3) The Regulator may require that moneys in an amount of not more than the amount prescribed for any case or class of cases, or fixed by the Regulator in the absence of regulations, be paid out of the funds available under the letter of credit, guarantee or indemnity bond or other proof provided under subsection (1) in respect of any claim for which proceedings may be instituted under section 188.19, whether or not those proceedings have been instituted.
Marginal note:Manner of payment
(4) A required payment shall be made in the manner, subject to any conditions and procedures, and to or for the benefit of the persons or classes of persons that may be prescribed for any case or class of cases, or that may be required by the Regulator in the absence of regulations.
Marginal note:Deduction
(5) If a claim is sued for under section 188.19, there shall be deducted from any award made as a result of the action on that claim any amount received by the claimant under this section in respect of the loss, damage, costs or expenses claimed.
Marginal note:Review committee
188.22 (1) A committee, consisting of members appointed by each government and by representatives of the offshore renewable energy industry and of the fisheries industry, is established by the joint operation of this Act and the Provincial Act to review and monitor the application of sections 188.19 and 188.21 and any claims and the payment of claims made under those sections.
Marginal note:Dissolution
(2) The committee may be dissolved only by the joint operation of an Act of Parliament and an Act of the Legislature of the Province.
Marginal note:Promotion of compensation policies
(3) The Regulator shall promote and monitor compensation policies for fishers sponsored by the fishing industry respecting damages of a non-attributable nature.
Inquiries
Marginal note:Inquiries
188.23 (1) If debris or an accident or incident related to any work or activity to which this Division applies occurs or is found in any portion of the offshore area and results in death or injury or danger to public safety or the environment, the Regulator may direct an inquiry to be made and may authorize any person it deems qualified to conduct the inquiry.
Marginal note:Mandatory inquiry
(2) If debris or an accident or incident related to any work or activity to which this Division applies occurs or is found in any portion of the offshore area and is “serious”, as defined by regulation in accordance with paragraph 188.25(1)(a), the Regulator shall direct that an inquiry referred to in subsection (1) be made and shall ensure that the person who conducts the inquiry is not employed by the Regulator.
Marginal note:Power of person conducting inquiry
(3) For the purposes of an inquiry under subsection (1), a person authorized by the Regulator under that subsection has and may exercise all the powers of a person appointed as a commissioner under Part I of the Inquiries Act.
Marginal note:Report
(4) As soon as feasible after the conclusion of an inquiry under subsection (1), the person or persons authorized to conduct the inquiry shall submit a report to the Regulator, together with the evidence and other material that was before the inquiry.
Marginal note:Publication
(5) The Regulator shall publish the report within 30 days after the Regulator receives it.
Marginal note:Copies of report
(6) The Regulator may supply copies of a report published under subsection (5) in any manner and on any terms that the Regulator considers appropriate.
General Duty
Marginal note:Reasonable care
188.24 The holder of an authorization issued under subsection 142.011(1) shall take all reasonable care to ensure the safety of persons and facilities and the protection of property and the environment.
Regulations
Marginal note:Regulations
188.25 (1) Subject to section 6, the Governor in Council may, for the purposes of safety, the protection of the environment and accountability, make regulations
(a) defining, in relation to offshore renewable energy projects, “facility” and “equipment” for the purposes of section 143.1 and “serious” for the purpose of section 188.23;
(b) respecting works and activities related to offshore renewable energy projects;
(c) authorizing the Regulator, or any person, to make any orders that are specified in the regulations and to exercise any powers and perform any duties that are necessary for the design, construction, operation or abandonment of an offshore renewable energy project within the offshore area;
(d) respecting arbitrations relating to offshore renewable energy projects for the purposes of subsection 142.1(2), including the costs of or incurred in relation to such arbitrations;
(e) respecting the approvals to be granted as terms and conditions of authorizations issued under subsection 142.011(1);
(f) prohibiting, in relation to offshore renewable energy projects, the introduction into the environment of substances, classes of substances and forms of energy, in prescribed circumstances;
(g) respecting the creation, conservation and production of records relating to offshore renewable energy projects; and
(h) prescribing, in relation to offshore renewable energy projects, anything that is required to be prescribed for the purposes of this Part.
Marginal note:Incorporation by reference
(2) Unless otherwise provided in this Part, a regulation made under subsection (1) may incorporate by reference any document, regardless of its source, either as it exists on a particular date or as it is amended from time to time.
Marginal note:Equivalent standards and exemptions
188.26 (1) Subject to subsection (2), the Chief Safety Officer and Chief Conservation Officer may
(a) authorize the use of equipment, methods, measures or standards in lieu of any required by any regulation made under section 188.25 if those Officers are satisfied that the use of that other equipment or those other methods, measures or standards would provide a level of safety and protection of the environment equivalent to that provided by compliance with the regulations; or
(b) grant an exemption from any requirement imposed by any regulation made under section 188.25 in respect of equipment, methods, measures or standards if those Officers are satisfied with the level of safety and protection of the environment that will be achieved without compliance with that requirement.
Marginal note:One-officer authorizations
(2) The Chief Safety Officer alone may exercise the powers referred to in paragraph (1)(a) or (b) if the regulatory requirement referred to in that paragraph does not relate to protection of the environment, and the Chief Conservation Officer alone may exercise those powers if the regulatory requirement does not relate to safety.
Marginal note:No contravention
(3) No person contravenes the regulations if that person acts in compliance with an authorization or exemption under subsection (1) or (2).
Marginal note:Guidelines and interpretation notes
188.27 (1) The Regulator may issue and publish, in any manner the Regulator considers appropriate, guidelines and interpretation notes with respect to the application and administration of section 142.011, any regulations respecting offshore renewable energy projects made under sections 30.1 and 188.25 and any regulations made under section 188.29 and subsection 188.3(3).
Marginal note:Deemed not to be statutory instruments
(2) Guidelines and interpretation notes issued under subsection (1) are deemed not to be statutory instruments for the purposes of the Statutory Instruments Act.
DIVISION II.2Safety and Protection of Persons, Property and the Environment
Marginal note:Orders
188.28 (1) The Regulator may, by order, direct any of the following persons or bodies to take measures in respect of an abandoned facility that the Regulator considers necessary for the safety of persons or the abandoned facility or for the protection of property or the environment:
(a) the holder of an authorization under paragraph 142(1)(b) or subsection 142.011(1) or any other person;
(b) a provincial government or a provincial Crown corporation; and
(c) a local authority.
Marginal note:Measures to be taken
(2) If a person or body does not comply with an order under subsection (1), the Regulator may
(a) take any action or measure the Regulator considers necessary;
(b) authorize an officer or employee, or class of officers or employees, of the Regulator to take the action or measure; or
(c) authorize a third party to take the action or measure.
Marginal note:Orders deemed not to be statutory instruments
(3) Orders made under subsection (1) shall be deemed not to be statutory instruments for the purposes of the Statutory Instruments Act.
Marginal note:Regulations
188.29 Subject to section 6, the Governor in Council may make regulations respecting abandoned facilities, including with respect to liability and to the proof of financial responsibility or financial resources to be provided by an applicant or holder of an authorization under subsection 142.011(1).
Marginal note:Abandoned facilities
188.3 (1) A person shall not make contact with, alter or remove an abandoned facility unless they are authorized to do so in an order made under subsection (2) or by regulations.
Marginal note:Order
(2) The Chief Safety Officer may make an order, subject to any conditions that that Officer considers appropriate, authorizing a person to make contact with, alter or remove an abandoned facility.
Marginal note:Regulations
(3) Subject to section 6, the Governor in Council may make regulations respecting the circumstances in which or conditions under which an order under subsection (2) is not necessary.
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