Canada–Nova Scotia Offshore Petroleum Resources Accord Implementation and Offshore Renewable Energy Management Act (S.C. 1988, c. 28)

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.