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

Decisions in Relation to Offshore Management

Marginal note:Regulator’s decisions final

31 Subject to this Act, the exercise of a power or the performance of a duty by the Regulator pursuant to this Act is final and not subject to the review or approval of either government or either Minister.

Petroleum-related Decisions

Marginal note:Notice to Ministers of fundamental decisions

• 32 (1) Forthwith after making a fundamental decision, the Regulator shall give written notice of the decision to the Federal Minister and the Provincial Minister.

• Marginal note:Public notice of fundamental decisions

  (2) The Regulator shall cause a fundamental decision to be published

  • (a) thirty days after receipt by both Ministers of a notice of the fundamental decision pursuant to subsection (1), or

  • (b) when the fundamental decision is implemented,

  whichever occurs earlier.

Marginal note:Suspension of implementation of fundamental decision

• 33 (1) Subject to subsection (2), a fundamental decision shall not be implemented

  • (a) before the expiration of 30 days after receipt by both Ministers of a notice of the fundamental decision under subsection 32(1) and any further period during which the implementation of the decision is suspended under section 34 or during which, under section 35, the decision may be set aside, the setting aside may be overruled or a determination may be made by the Commission of the Canadian Energy Regulator; or

  • (b) if the decision has been conclusively set aside.

• Marginal note:Exception where approval of both Ministers

  (2) A fundamental decision may be implemented before the expiration of the periods referred to in paragraph (1)(a) where the Regulator is advised, in writing, that both the Federal Minister and the Provincial Minister approve that decision.

• Marginal note:Decision to be implemented on expiration of delays

  (3) Where, on the expiration of the periods referred to in paragraph (1)(a), a fundamental decision of the Regulator has not been conclusively set aside, that decision shall be implemented forthwith by the Regulator.

Marginal note:Suspension rights

34 The Federal Minister or the Provincial Minister may, on giving written notice to the other Minister and the Regulator within thirty days after receipt of a notice of a fundamental decision pursuant to subsection 32(1), suspend the implementation of the decision during a period not exceeding sixty days after receipt of the notice of the decision pursuant to subsection 32(1).

Marginal note:Veto

• 35 (1) Within thirty days after receipt of a notice of a fundamental decision pursuant to subsection 32(1) and any further period during which the implementation of the decision is suspended pursuant to section 34, the decision may be set aside

  • (a) by both the Federal Minister and the Provincial Minister; or

  • (b) by the Provincial Minister, in the case of

    • (i) a fundamental decision of the Regulator referred to in paragraph 143(4)(a), or

    • (ii) a fundamental decision with respect to a call for bids pursuant to Part II in relation to, or interests in relation to, a portion of the offshore area that is situated wholly within the Bay of Fundy or Sable Island.

• Marginal note:Federal Minister’s veto

  (2) The Federal Minister may

  • (a) set aside a fundamental decision of the Regulator within thirty days after receipt of a notice of the decision pursuant to subsection 32(1) or any further period during which the implementation of the decision is suspended pursuant to section 34, or

  • (b) overrule the setting aside of a fundamental decision by the Provincial Minister within thirty days after receipt of a notice to that effect pursuant to subsection (3),

  if, in the opinion of the Federal Minister, the decision, in the case of paragraph (a), or the setting aside of the decision, in the case of paragraph (b), would unreasonably delay the attainment of security of supply.

• Marginal note:Notice

  (3) Where a Minister sets aside a fundamental decision of the Regulator pursuant to subsection (1) or (2) or the Federal Minister overrules the setting aside of a fundamental decision pursuant to subsection (2), that Minister shall give a written notice to that effect to the other Minister and the Regulator.

• Marginal note:Commission of the Canadian Energy Regulator

  (4) Despite subsection (2), if the Provincial Minister disagrees with the setting aside or overruling by the Federal Minister in respect of a fundamental decision under subsection (2), the Commission of the Canadian Energy Regulator must, on application made by the Provincial Minister within the time and in the manner that may be prescribed,

  • (a) determine whether the fundamental decision of the Regulator or the setting aside of that decision would unreasonably delay the attainment of security of supply; and

  • (b) thereby confirm or vacate the setting aside or overruling by the Federal Minister in respect of the fundamental decision.

• Marginal note:Procedures for determination

  (5) A determination of the Commission of the Canadian Energy Regulator made under subsection (4),

  • (a) despite the Canadian Energy Regulator Act, must be made within the time and in the manner that may be prescribed;

  • (b) is final and binding and is not subject to appeal to, or review or setting aside by, any Minister, government, court or other body; and

  • (c) must be published without delay by the Canadian Energy Regulator.

• Marginal note:Transitional

  (6) Where an application is made by the Provincial Minister to the Canadian Energy Regulator prior to the coming into force of the first regulation made for the purposes of subsection (4) or paragraph (5)(a), the application and the determination of the Canadian Energy Regulator shall be made in accordance with the procedures and within the periods established by the Canadian Energy Regulator.

• Marginal note:Conclusively set aside

  (7) For the purposes of section 33, a fundamental decision shall be deemed to have been conclusively set aside if

  • (a) it is set aside by both Ministers pursuant to subsection (1);

  • (b) it is set aside by the Provincial Minister pursuant to subsection (1) and the setting aside has not been overruled pursuant to paragraph (2)(b) or, if it has been so overruled, that overruling is vacated pursuant to subsection (4); or

  • (c) it is set aside by the Federal Minister pursuant to subsection (2) and the setting aside has not been vacated pursuant to subsection (4).

• Marginal note:Regulations

  (8) Subject to section 6, the Governor in Council may make regulations prescribing anything that, by this section, is to be prescribed.

• Marginal note:Definitions

  (9) In this section and sections 36 and 37,

  security of supply

  security of supply, in respect of any period, means the anticipation of self-sufficiency during each of the five calendar years in that period, taking into account the aggregate during each such year of anticipated additions to producing capacity and anticipated adjustments to refining capacity; (sécurité des approvisionnements)

  self-sufficiency

  self-sufficiency means a volume of suitable crude oil and equivalent substances available from Canadian hydrocarbon producing capacity that is adequate to supply the total feedstock requirements of Canadian refineries necessary to satisfy the total domestic refined product requirements of Canada, excluding those feedstock requirements necessary to produce specialty refined products; (autosuffisance)

  suitable crude oil and equivalent substances

  suitable crude oil and equivalent substances means those substances that are appropriate for processing in Canadian refineries and that are potentially deliverable to Canadian refineries. (pétrole brut et substances assimilées acceptables)

Marginal note:Determination binding

• 36 (1) For all purposes of this Act, including section 35, where a determination whether security of supply exists is made by both Ministers or by a panel pursuant to section 37 or is deemed to have been made pursuant to subsection (2), it is final and binding for the duration of the period in respect of which it is made.

• Marginal note:Initial period

  (2) In respect of the period commencing on January 1, 1986 and terminating on December 31, 1990, a determination shall be deemed to have been made, for all purposes of this Act, including section 35, that security of supply does not exist.

• Marginal note:Subsequent periods

  (3) Each period following the period referred to in subsection (2) shall commence on the expiration of the period immediately preceding that period and shall be for a duration of five successive calendar years.

Marginal note:Where no agreement on determination re security of supply

• 37 (1) Where the two Ministers fail to agree on a determination whether security of supply exists in respect of any period, the determination shall be made by a panel, constituted in accordance with section 47, within sixty days after the appointment of the chairperson of the panel unless, at any time prior to the determination by the panel, the two Ministers agree on the determination.

• Marginal note:Determination not subject to review

  (2) Where a determination referred to in subsection (1) is made by a panel pursuant to that subsection, that determination is final and binding and is not subject to appeal to, or review or setting aside by, any Minister, government, court or other body.

Marginal note:Supply shortfall

• 38 (1) Notwithstanding any other provision of this Act, nothing in this Act limits the powers of the Government of Canada in the event of a sudden domestic or import supply shortfall of suitable crude oil and equivalent substances or with respect to any other energy emergency.

• Marginal note:Canada’s obligations under IEA

  (2) Notwithstanding any other provision of this Act, where the Government of Canada has obligations with respect to the allocation of petroleum pursuant to the Agreement On An International Energy Program dated November 18, 1974, the Regulator shall, where authorized to do so by the Federal Minister and during the period that those obligations continue, take such measures as are necessary to comply with those obligations and as are fair and equitable in relation to other hydrocarbon producing regions of Canada.

Decisions Related to Offshore Renewable Energy

Marginal note:Regulator’s recommendation

• 38.1 (1) The Regulator shall notify the Federal Minister and the Provincial Minister in writing of its offshore renewable energy recommendation as soon as practicable after deciding to make the recommendation.

• Marginal note:Ministers’ decisions

  (2) The Federal Minister and the Provincial Minister shall, within 60 days after receiving the recommendation, notify the Regulator in writing of their respective decision to approve the recommendation, with or without variations, or to reject it.

• Marginal note:Additional 30 days

  (3) Despite subsection (2), on written notice by either Minister to the Regulator and the other Minister, both Ministers shall have an additional 30 days to notify the Regulator of their respective decision under that subsection.

• Marginal note:No time limit

  (4) Despite subsection (2), the Federal Minister or the Provincial Minister may notify the Regulator of their respective decision with respect to an offshore renewable energy recommendation to make a call for bids beyond the period of 60 days referred to in that subsection.

Marginal note:Publication

38.2 The Regulator shall publish in the Canada Gazette any notice of decision referred to in subsection 38.1(2), unless the decision is to reject an offshore renewable energy recommendation to make a call for bids.

Marginal note:Implementation of Ministers’ approval

38.3 The Regulator shall only exercise a power or perform a duty subject to this section and sections 38.1 and 38.2 if it has been the subject of an offshore renewable energy recommendation that was approved by both Ministers with the same variations, if any. In that case, the Regulator shall exercise the power or perform the duty as soon as practicable after it receives the notices referred to in subsection 38.1(2).

Regional Security of Supply

Definition of shortfall of petroleum deliveries in the Province

• 39 (1) In this section, shortfall of petroleum deliveries in the Province means deliveries of petroleum that are inadequate to supply, on commercial terms,

  • (a) the end use consumption demands of all consumers in the Province;

  • (b) feedstock requirements of industrial facilities that are in place in the Province on January 31, 1986; and

  • (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:Notice by Provincial Minister to holders of production licences

  (2) Where there is a shortfall of petroleum deliveries in the Province, the Provincial Minister may, after consulting with the Federal Minister, give notice to holders of production licences in the offshore area that the consumers and facilities referred to in paragraphs (1)(a), (b) and (c) that are specified in the notice have, during the term of the notice, the first option to acquire, on commercial terms, petroleum produced in the offshore area unless a sales contract with respect to that petroleum has been entered into prior to the giving of the notice.

• Marginal note:Later contracts subject to notice

  (3) Notwithstanding any other provision of this Act, any contract entered into after the giving of the notice referred to in subsection (2) shall be deemed to be varied or suspended to the extent necessary to give effect to that notice.

• Marginal note:Term of notice

  (4) The term of a notice given under subsection (2) is the period during which a shortfall of petroleum deliveries in the Province continues to exist.

• Marginal note:Arbitration in case of dispute whether shortfall exists

  (5) Where the Federal Minister or a holder of a production licence to whom a notice has been given under subsection (2) does not agree with the Provincial Minister that a shortfall of petroleum deliveries in the Province exists or continues to exist, the matter shall be referred to arbitration in the manner prescribed.

• Marginal note:Notice ceases to have effect

  (6) Where it is determined pursuant to arbitration that a shortfall of petroleum deliveries in the Province does not exist or continue to exist, the notice given under subsection (2) shall be deemed to be revoked and ceases to have effect on the date on which the determination is made.

• Marginal note:Regulations

  (7) Subject to section 6, the Governor in Council may make regulations for carrying out the purposes and provisions of this section and, without limiting the generality of the foregoing, may make regulations

  • (a) defining the expression commercial terms or providing for arbitration to establish commercial terms in any particular case;

  • (b) governing, for the purposes of this section, arbitration and the making of arbitration orders and governing the enforcement of arbitration orders and appeals from those orders; and

  • (c) prescribing the manner of exercising a first option to acquire that is granted pursuant to a notice given under subsection (2).