Bill C-22
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C-22
Second Session, Forty-first Parliament,
62-63 Elizabeth II, 2013-2014
HOUSE OF COMMONS OF CANADA
BILL C-22
An Act respecting Canada’s offshore oil and gas operations, enacting the Nuclear Liability and Compensation Act, repealing the Nuclear Liability Act and making consequential amendments to other Acts
Reprinted as amended by the Standing Committee on Natural Resources as a working copy for the use of the House of Commons at Report Stage and as reported to the House on June 11, 2014
MINISTER OF NATURAL RESOURCES
90718
RECOMMENDATION
His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act respecting Canada’s offshore oil and gas operations, enacting the Nuclear Liability and Compensation Act, repealing the Nuclear Liability Act and making consequential amendments to other Acts”.
SUMMARY
Part 1 of this enactment amends the Canada Oil and Gas Operations Act, the Canada Petroleum Resources Act, the Canada-Newfoundland Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act (the “Acts”) primarily to update, strengthen and increase the level of transparency of the liability regime that is applicable to spills and debris in the offshore areas.
More specifically, Part 1, among other things,
(a) expressly includes the “polluter pays” principle, which is consistent with the notion that the liability of at-fault operators is unlimited;
(b) increases to $1 billion the limit of liability, without proof of fault or negligence, to which certain operators are subject in the event of a spill or damages caused by debris;
(c) provides that an applicant for an authorization for the drilling for or development or production of oil or gas must demonstrate that it has the financial resources required to pay the greatest of the amounts of the limits of liability that apply to it;
(d) establishes a regime in respect of the development of transboundary pools and fields;
(e) provides for new circumstances in which information or documentation that is privileged may be disclosed;
(f) establishes a legal framework to permit the safe use of spill-treating agents in specific circumstances;
(g) harmonizes the environmental assessment process for projects for which the National Energy Board, the Canada-Newfoundland Offshore Petroleum Board or the Canada-Nova Scotia Offshore Petroleum Board is the responsible authority, as defined in the Canadian Environmental Assessment Act, 2012, with the requirements of that Act, including by establishing timelines for carrying out environmental assessments and creating participant funding programs to facilitate the participation of the public in environmental assessments; and
(h) creates administrative monetary penalty regimes.
Finally, Part 1 makes amendments to remove certain discrepancies between the English and French versions of the Acts, as well as to modernize the language in the Acts.
Part 2 of the enactment repeals the Nuclear Liability Act and enacts the Nuclear Liability and Compensation Act to strengthen the liability regime applicable after a nuclear incident. It also provides for the establishment, in certain circumstances, of an administrative tribunal to hear and decide claims and implements certain provisions of the Convention on Supplementary Compensation for Nuclear Damage. It also makes consequential amendments to other Acts.
Available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca
http://www.parl.gc.ca
TABLE OF PROVISIONS
AN ACT RESPECTING CANADA’S OFFSHORE OIL AND GAS OPERATIONS, ENACTING THE NUCLEAR LIABILITY AND COMPENSATION ACT, REPEALING THE NUCLEAR LIABILITY ACT AND MAKING CONSEQUENTIAL AMENDMENTS TO OTHER ACTS
SHORT TITLE
1. Energy Safety and Security Act
PART 1
MODERNIZING CANADA’S OFFSHORE OIL AND GAS OPERATIONS REGIME
Canada Oil and Gas Operations Act
2–28.
Canada Petroleum Resources Act
29–36.
Canada-Newfoundland Atlantic Accord Implementation Act
37–70.
Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act
71–109.
Consequential Amendments
110–115. Nova Scotia and Newfoundland and Labrador Additional Fiscal Equalization Offset Payments Act
116. Budget and Economic Statement Implementation Act, 2007
Coordinating Amendments
117. Bill C-5
118. Bill C-15
Coming into Force
119. Order in council
PART 2
NUCLEAR LIABILITY AND COMPENSATION ACT
ENACTMENT OF ACT
120. Enactment
AN ACT RESPECTING CIVIL LIABILITY AND COMPENSATION FOR DAMAGE IN CASE OF A NUCLEAR INCIDENT, REPEALING THE NUCLEAR LIABILITY ACT AND MAKING CONSEQUENTIAL AMENDMENTS TO OTHER ACTS
SHORT TITLE
1. Nuclear Liability and Compensation Act
INTERPRETATION
2. Definitions
PURPOSE OF ACT
3. Civil liability and compensation
DESIGNATION OF MINISTER
4. Minister
NON-APPLICATION
5. Non-application — war, etc.
HER MAJESTY
6. Binding on Her Majesty
DESIGNATION OF NUCLEAR INSTALLATIONS AND OPERATORS
7. Designation of nuclear installations
LIABILITY FOR NUCLEAR INCIDENTS
Operator’s Liability
8. Limitation
9. Liability — Canada
10. Absolute liability
11. Liability — jointly and severally, or solidarily
12. Person responsible for nuclear incident
13. No recourse
Compensable Damage
14. Bodily injury or damage to property
15. Psychological trauma
16. Liability for economic loss
17. Costs and wages
18. Environmental damage — Canada
19. Environmental damage — Contracting State other than Canada
20. Preventive measures — Canada
21. Preventive measures — Contracting State other than Canada
22. Damage attributable to concomitant nuclear incidents
23. Damage to means of transport, structure or site
Financial Provisions
24. Limit of operator’s liability
25. Liability — transportation
26. Review by Minister
27. Operator’s obligation
28. Insurance
29. Approved insurer
30. Suspension or cancellation
31. Indemnity agreements — general rule
32. Nuclear Liability Account
Preservation of Certain Rights and Obligations
33. Certain rights and obligations not limited
Judicial Proceedings
34. Where action is to be brought
35. Limitation on bringing actions and claims
NUCLEAR CLAIMS TRIBUNAL
Governor in Council’s Declaration
36. Declaration
37. Effect of declaration
Report to Parliament
38. Report on nuclear incident
Interim Financial Assistance
39. Interim financial assistance
40. Power to make agreements
Establishment of a Nuclear Claims Tribunal
41. Tribunal’s establishment
42. Public notice
43. Members of Tribunal
44. Term of office
45. Immunity
46. Tribunal’s staff
47. Technical or specialized knowledge
48. Inconsistency
Tribunal’s Powers and Duties
49. Hearings
50. Intervenor
51. Powers — witnesses and documents
52. Examinations
53. Frivolous or vexatious claims
54. Report on Tribunal’s activities
55. Rules
Claims
56. Panels
57. Notice
58. Public hearings
59. Interim award of compensation
60. Notice — decision
Rehearing and Appeal
61. Rehearing of claims officer’s decision
62. Appeal
63. Judicial review
Financial Provisions
64. Payment of awards
65. Recovery of overpayment
66. Payments out of Nuclear Liability Account
67. Operator’s liability to Her Majesty
68. Limit of payments
69. Changes to reductions
RECIPROCATING AGREEMENTS
70. Reciprocating countries
OTHER INTERNATIONAL OBLIGATIONS
71. Additional liability — call for public funds
72. Financial contribution — call for funds by Canada
73. Canada’s financial contribution — call for funds by other Contracting State
74. Reimbursement
75. Recognition of settlements — Contracting State other than Canada
76. Subrogation — contribution by Canada
OFFENCE AND PUNISHMENT
77. Failure to maintain financial security
REGULATIONS
78. Regulations — general
79. Regulations — Tribunal
80. Regulations — compensation
Amendments to the Nuclear Liability and Compensation Act
121–122.
Consequential Amendments
123. Transportation of Dangerous Goods Act, 1992
124–126. Nuclear Safety and Control Act
Terminology
127. Replacement of “Nuclear Liability Reinsurance Account”
Repeal
128. Nuclear Liability Act
Coming into Force
129. Order in council
SCHEDULE 1
SCHEDULE 2
SCHEDULE 3
SCHEDULE 4
2nd Session, 41st Parliament,
62-63 Elizabeth II, 2013-2014
house of commons of canada
BILL C-22
An Act respecting Canada’s offshore oil and gas operations, enacting the Nuclear Liability and Compensation Act, repealing the Nuclear Liability Act and making consequential amendments to other Acts
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Short title
1. This Act may be cited as the Energy Safety and Security Act.
PART 1
MODERNIZING CANADA’S OFFSHORE OIL AND GAS OPERATIONS REGIME
R.S., c. O-7; 1992, c. 35, s. 2
Canada Oil and Gas Operations Act
1992, c. 35, s. 3(3)(F)
2. (1) The definition “règlement” in section 2 of the French version of the Canada Oil and Gas Operations Act is replaced by the following:
« règlement »
French version only
French version only
« règlement » Sauf indication contraire du contexte, texte d’application pris par le gouverneur en conseil.
(2) Section 2 of the Act is amended by adding the following in alphabetical order:
“spill-treating agent”
« agent de traitement »
« agent de traitement »
“spill-treating agent”, except in section 25.4, means a spill-treating agent that is on the list established under section 14.2;
3. Section 2.1 of the Act is amended by adding the following after paragraph (b):
(b.01) accountability in accordance with the “polluter pays” principle;
1994, c. 10, s. 2; 2012, c. 19, s. 118
4. Subsection 4.1(1) of the Act is replaced by the following:
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.
5. The Act is amended by adding the following after section 4.1:
COST RECOVERY
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.
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.
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.
1992, c. 35, s. 8; 1994, c. 10, s. 15
6. (1) Subsection 5(3) of the Act is replaced by the following:
Requirements for operating licence
(3) An operating licence is subject to any requirements that are determined by the National Energy Board or that are prescribed and to any deposits that are prescribed.
1992, c. 35, s. 8
(2) Paragraph 5(5)(a) of the Act is replaced by the following:
(a) a requirement, approval or deposit subject to which the licence or authorization was issued;
(a.1) a fee or charge payable in accordance with regulations made under section 4.2;
1992, c. 35, s. 8
(3) Paragraph 5(5)(c) of the Act is replaced by the following:
(c) subsection 5.11(3), 5.12(2), 26.1(4) or (5) or 27(1.1), (1.2) or (5); or
7. The Act is amended by adding the following after section 5:
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.
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.
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.
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.
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.
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).
8. (1) The Act is amended by adding the following after section 5.02:
Spill-treating Agent
Net environmental benefit
5.021 The National Energy Board shall not permit the use of a spill-treating agent in an authorization issued under paragraph 5(1)(b) unless the Board determines that the use of the spill-treating agent is likely to achieve a net environmental benefit.
(2) Section 5.021 of the Act is replaced by the following:
Net environmental benefit
5.021 The National Energy Board shall not permit the use of a spill-treating agent in an authorization issued under paragraph 5(1)(b) unless the Board determines, taking into account any prescribed factors and any factors the Board considers appropriate, that the use of the spill-treating agent is likely to achieve a net environmental benefit.
1992, c. 35, s. 8; 1994, c. 10, s. 15
9. Section 5.03 of the Act and the heading before it are replaced by the following:
Financial Requirements
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.
10. Section 5.1 of the Act is amended by adding the following in numerical order:
Transboundary pool or field
(7) The definitions in sections 29 and 48.15 apply in subsections (8) to (12).
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.
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.
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.
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).
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.
11. Section 5.2 of the Act is amended by adding the following after subsection (3):
Transboundary pool or field
(4) The definitions in sections 29 and 48.15 apply in subsections (5) and (6).
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.
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.
2007, c. 35, s. 148
12. Subsection 5.3(1) of the Act is replaced by the following:
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.
2007, c. 35, s. 149
13. Sections 5.34 and 5.35 of the Act are replaced by the following:
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.
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.
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.
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.
1992, c. 35, s. 14
14. (1) The portion of subsection 14(1) of the Act before paragraph (a) is replaced by the following:
Governor in Council’s regulatory power
14. (1) The Governor in Council may, for the purposes of safety, the protection of the environment, and accountability as well as for the production and conservation of oil and gas resources, make regulations
(2) Subsection 14(1) of the Act is amended by adding the following after paragraph (b):
(b.1) concerning the measures to be taken in preparation for or in the case of a spill, as defined in subsection 24(1), including meas-ures concerning the use of a spill-treating agent;
(b.2) concerning the process for the determination of net environmental benefit;
(b.3) concerning the variation or revocation of an approval referred to in paragraph 25.1(1)(b);
(3) Subsection 14(1) of the Act is amended by striking out “and” at the end of paragraph (h) and by adding the following after that paragraph:
(h.1) establishing the requirements for a pooled fund for the purposes of subsection 27(1.01);
(h.2) concerning the circumstances under which the National Energy Board may make a recommendation for the purposes of subsection 27.1(1) and the information to be submitted with respect to that recommendation;
(h.3) concerning the creation, conservation and production of records; and
(4) Section 14 of the Act is amended by adding the following after subsection (2):
Spill-treating agents
(3) Regulations made under subsection (1) respecting a spill-treating agent shall be made on the recommendation of the federal Ministers and the Minister of the Environment.
15. The Act is amended by adding the following after section 14:
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.
Recommendation
(2) The order shall be made on the recommendation of the Minister and every minister responsible for the administration of the provision.
List of spill-treating agents
14.2 The Minister of the Environment may, by regulation, establish a list of spill-treating agents.
1992, c. 35, s. 22(1); 2001, c. 26, s. 324(10)
16. Subsections 24(1) to (3) of the Act are replaced by the following:
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.
17. (1) The Act is amended by adding the following after section 25:
Spill-treating agents
25.1 (1) In the case of a spill 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, the provisions referred to in Schedule 1 do not apply to the deposit of a spill-treating agent and those referred to in Schedule 2 do not apply in respect of any harm that is caused by the spill-treating agent or by the interaction between the spill-treating agent and the spilled oil, if
(a) the authorization issued under paragraph 5(1)(b) permits the use of the spill-treating agent;
(b) the Chief Conservation Officer approves the use of the agent in response to the spill and it is used in accordance with any requirements set out in the approval; and
(c) the agent is used for the purposes of subsection 25(3) or (4).
Clarification
(2) The provisions referred to in Schedule 2 continue to apply to the holder of an authorization referred to in paragraph (1)(a) in respect of any harm that is caused by the spill or, despite subsection (1), by the interaction between the spill-treating agent and the spilled oil.
Net environmental benefit
(3) Other than in the case of a small-scale test, the approval required under paragraph (1)(b) shall be in writing and shall not be granted unless the Chief Conservation Officer
(a) has consulted with the Minister and the Minister of the Environment with respect to the approval; and
(b) determines that the use of the agent is likely to achieve a net environmental benefit.
(2) Paragraph 25.1(1)(b) of the Act is replaced by the following:
(b) other than in the case of a small-scale test that meets the prescribed requirements, the Chief Conservation Officer approves in writing the use of the agent in response to the spill and it is used in accordance with any requirements set out in the approval;
(3) Subsection 25.1(1) of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):
(d) the agent is used in accordance with the regulations.
(4) Subsection 25.1(3) of the Act is replaced by the following:
Net environmental benefit
(3) Other than in the case of a small-scale test, the Chief Conservation Officer shall not approve the use of a spill-treating agent unless the Officer determines, taking into account any prescribed factors and any factors the Officer considers appropriate, that the use of the spill-treating agent is likely to achieve a net environmental benefit.
18. The Act is amended by adding the following after section 25.1:
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.
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.
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.
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.
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.
1992, c. 35, s. 24(1)
19. (1) Paragraphs 26(1)(a) and (b) of the Act are replaced by the following:
(a) all persons to whose fault or negligence the spill or the authorized discharge, emission or escape of oil or gas is attributable or who are by law responsible for others to whose fault or negligence the spill or the authorized discharge, emission or escape of oil or gas is attributable are jointly and severally liable, to the extent determined according to the degree of the fault or negligence proved against them, for
(i) all actual loss or damage incurred by any person as a result of the spill or the authorized discharge, emission or escape of oil or gas or as a result of any action or measure taken in relation to the spill or the authorized discharge, emission or escape of oil or gas,
(ii) the costs and expenses reasonably incurred by Her Majesty in right of Canada or a province or any other person in taking any action or measure in relation to the spill or the authorized discharge, emission or escape of oil or gas, and
(iii) all 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 any action or measure taken in relation to the spill or the authorized discharge, emission or escape of oil or gas; and
(b) the person who is required to obtain an authorization under paragraph 5(1)(b) in respect of the work or activity from which the spill or the authorized discharge, emission or escape of oil or gas emanated is liable, without proof of fault or negligence, up to the applicable limit of liability that is set out in subsection (2.2) for the actual loss or damage, the costs and expenses and the loss of non-use value described in subparagraphs (a)(i) to (iii).
1992, c. 35, ss. 23(4), 24(2), (3)(E) and (4)
(2) Subsections 26(2) to (3) of the Act are replaced by the following:
Recovery of loss, etc., caused by debris
(2) 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 Her Majesty in right of Canada or a 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; and
(b) the person who is required to obtain an authorization under paragraph 5(1)(b) 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 that is set out in subsection (2.2), for that loss, actual loss or damage, and for those costs and expenses.
Vicarious liability for contractors
(2.1) A person who is required to obtain an authorization under paragraph 5(1)(b) 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) or (2)(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 subparagraphs (1)(a)(i) to (iii) and subsection (2).
Limits of liability
(2.2) For the purposes of paragraphs (1)(b) and (2)(b), the limits of liability are
(a) in respect of any area of land or submarine area referred to in paragraph 6(1)(a) of the Arctic Waters Pollution Prevention Act, the amount by which $1 billion exceeds the amount prescribed under section 9 of that Act in respect of any activity or undertaking engaged in or carried on by any person described in paragraph 6(1)(a) of that Act;
(b) in respect of any area within the Northwest Territories or Nunavut covered by or located a distance of 200 metres or less from any river, stream, lake or other body of inland water and to which paragraph (a) does not apply, the amount of $25 million;
(c) in respect of any area within the Northwest Territories or Nunavut to which neither paragraph (a) nor (b) applies, the amount of $10 million; and
(d) in respect of any area to which this Act applies and for which no other limit is established, the amount of $1 billion.
Increase in limits of liability
(2.3) The Governor in Council may, by regulation, on the recommendation of the Minister, increase the amounts referred to in subsection (2.2).
Liability under another law — paragraph (1)(b) or (2)(b)
(2.4) If a person is liable under paragraph (1)(b) or (2)(b) 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 (2.2) 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 limits set out in subsection (2.2) do not apply.
Costs and expenses not recoverable under Fisheries Act
(2.5) The costs and expenses that are recov-erable by Her Majesty in right of Canada or a province under this section are not recoverable under subsection 42(1) of the Fisheries Act.
Action — loss of non-use value
(2.6) Only Her Majesty in right of Canada or a province may bring an action to recover a loss of non-use value described in subsections (1) and (2).
Claims
(3) All claims under this section may be sued for and recovered in any court of competent jurisdiction in Canada and shall rank, firstly, in favour of persons incurring actual loss or damage described in subsections (1) and (2), without preference, secondly, to meet any costs and expenses described in those subsections, and, lastly, to recover a loss of non-use value described in those subsections.
(3) The portion of subsection 26(4) of the Act before paragraph (a) is replaced by the following:
Saving
(4) Subject to subsections (2.5) and (2.6), nothing in this section suspends or limits
(4) Subsection 26(5) of the French version of the Act is replaced by the following:
Prescription
(5) Les poursuites en recouvrement de créances fondées sur le présent article se prescrivent par trois ans après la date des pertes, dommages ou frais et par six ans après la date des déversements, dégagements, écoulements ou rejets ou après la date où s’est manifestée la présence des débris.
20. The Act is amended by adding the following after section 26:
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.
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.
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.
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.
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.
1992, c. 35, s. 25; 1994, c. 10, s. 10
21. (1) Subsections 27(1) to (2) of the Act are replaced by the following:
Financial responsibility
27. (1) An applicant for an authorization under paragraph 5(1)(b) shall provide proof of financial responsibility in the form of a letter of credit, guarantee or indemnity bond or in any other form satisfactory to the National Energy Board,
(a) in the case of the drilling for or development or production of oil or gas in any area referred to in paragraph 3(b), in the amount of $100 million or, if the Board considers it necessary, in a greater amount that it determines; or
(b) in any other case, in an amount that is satisfactory to, and determined by, the Board.
Pooled fund
(1.01) An applicant to which paragraph (1)(a) applies may, rather than provide proof of financial responsibility in the amount referred to in that paragraph, provide proof that it participates in a pooled fund that is established by the oil and gas industry, that is maintained at a minimum of $250 million and that meets any other requirements that are established by regulation.
Increase in amount by regulation
(1.02) The Governor in Council may, by regulation, on the recommendation of the Minister, increase the amount referred to in subsection (1.01).
Continuing obligation
(1.1) The holder of an authorization under paragraph 5(1)(b) shall ensure that the proof of financial responsibility referred to in subsection (1) or (1.01) remains in force for the duration of the work or activity in respect of which the authorization is issued.
Extended obligation
(1.2) The holder of an authorization under paragraph 5(1)(b) shall also ensure that the proof referred to in paragraph (1)(a) or subsection (1.01) 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 — other than in the case of a holder that participates in a pooled fund — that the proof that is to remain in force during that period is for an amount that is less than the amount referred to in paragraph (1)(a) and that is determined by the Board.
Payment of claims
(2) The National Energy Board may require that moneys in an amount not exceeding the amount prescribed for any case or class of cases, or determined by the Board in the absence of regulations, be paid out of the funds available under the letter of credit, guarantee or indemnity bond or other form of financial responsibility provided under subsection (1), or be paid out of the pooled fund referred to in subsection (1.01), in respect of any claim for which proceedings may be instituted under section 26, whether or not those proceedings have been instituted.
(2) Section 27 of the Act is amended by adding the following after subsection (4):
Reimbursement of pooled fund
(5) The holder of an authorization under paragraph 5(1)(b) that is liable for a discharge, emission or escape of oil or gas that is authorized by regulation or for any spill or debris in respect of which a payment has been made under subsection (2) out of the pooled fund, shall reimburse the amount of the payment to the fund in the prescribed manner.
22. The Act is amended by adding the following after section 27:
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).
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.
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.
23. (1) The definition “unitization order” in section 29 of the Act is replaced by the following:
“unitization order”
« arrêté d’union »
« arrêté d’union »
“unitization order” means an order made under section 41 or 48.23;
(2) Section 29 of the Act is amended by adding the following in alphabetical order:
“expert”
« expert »
« expert »
“expert” means a person who is appointed under subsection 48.27(2) or an expert panel appointed under subsection 48.27(3);
“perimeter”
« bande limitrophe »
« bande limitrophe »
“perimeter” means
(a) the area in the Northwest Territories or Nunavut that is within 20 km of the limit of that territory; and
(b) the portion of the submarine area referred to in paragraph 3(b) that is within 10 nautical miles of the seaward limit of that submarine area;
“regulator”
« organisme de réglementation »
« organisme de réglementation »
“regulator” means a provincial government, a provincial regulatory agency or a federal-provincial regulatory agency that has administrative responsibility for the exploration for and exploitation of oil and gas in an area adjoining the perimeter;
“transboundary”
« transfron- talier »
« transfron- talier »
“transboundary” means, in relation to a pool, extending beyond the National Energy Board’s jurisdiction under this Act or, in relation to a field, underlain only by one or more such pools;
24. The Act is amended by adding the following in numerical order:
Transboundary Pools or Fields
Delineation
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.
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.
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.
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.
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.
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.
Reasons
(4) The National Energy Board shall provide each appropriate regulator and the Minister with the reasons for its determination and opinion.
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.
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.
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.
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
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.
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.
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).
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.
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.
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.
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 accord-ance with it, including any amendment to it.
Applicable provisions
(2) Subsections 37(2) and (3) apply to the unit agreement.
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.
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.
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.
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.
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).
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.
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.
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.
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).
Effect of unitization order
(2) The unit agreement and the unit operating agreement have the effect given to them by the Minister’s order.
Equivalent order
(3) A unitization order becomes effective only if the appropriate regulator has issued an equivalent order.
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.
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.
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).
Application of sections 43 and 46
(7) Sections 43 and 46 apply to the unitization order.
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.
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.
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.
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 accord-ance 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.
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 accord-ance 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.
Application of section 48.23
(6) Section 48.23 applies, with any modifications that the circumstances require, to an amended unitization order.
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.
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
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.
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.
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.
Qualifications — expert
(4) An expert shall be impartial and independent, and have knowledge or experience relative to the subject of disagreement between the parties.
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.
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.
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.
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.
25. Section 60 of the Act is amended by adding the following after subsection (2):
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 sentenc-ing 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.
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.
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.
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.
26. Section 65 of the Act is replaced by the following:
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.
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.
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.
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.
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.
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.
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.
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.
27. The Act is amended by adding the following after section 71:
Administrative Monetary Penalties
Powers
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.
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.
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
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.
Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Act and not to punish.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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).
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).
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.
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.
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.
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).
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.
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.
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
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.
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
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.
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.
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).
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
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.
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.
28. The Act is amended by adding, after section 74, the Schedules 1 and 2 set out in Schedule 1 to this Act.
R.S., c. 36 (2nd Supp.)
Canada Petroleum Resources Act
29. Paragraph 12(1)(b) of the French version of the Canada Petroleum Resources Act is replaced by the following:
b) problème environnemental ou social grave;
30. Subsection 28(5) of the French version of the Act is replaced by the following:
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).
31. (1) Subsections 33(1) and (2) of the Act are replaced by the following:
Drilling orders
33. (1) Subject to subsections (2) to (4), the Minister may, at any time after the National Energy Board has made a declaration of significant discovery, by order subject to section 106, require the interest owner of any interest in relation to any portion of the significant discovery area to drill a well on any portion of the significant discovery area that is subject to that interest, in accordance with any directions that may be set out in the order, and to commence the drilling within one year after the making of the order or within any longer period that the Minister specifies in the order.
Exception
(2) No order may be made under subsection (1) with respect to any interest owner who has completed a well on the relevant frontier lands within six months after the completion of that well.
(2) Subsection 33(3) of the French version of the Act is replaced by the following:
Condition
(3) Il ne peut être pris d’arrêté de forage dans les trois ans qui suivent la date d’abandon du puits qui a mis en évidence l’existence d’une découverte importante.
(3) Subsection 33(5) of the French version of the Act is replaced by the following:
Définition de « date d’abandon du puits »
(5) Pour l’application du paragraphe (3), la date d’abandon du puits est celle à laquelle le puits a été abandonné ou complété ou son exploitation suspendue conformément aux règlements applicables en matière de forage.
32. Subsection 35(3) of the Act is replaced by the following:
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).
33. Subsection 36(1) of the Act is replaced by the following:
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.
1992, c. 35, s. 38(1)
34. (1) The definition “date d’abandon du forage” in subsection 101(1) of the French version of the Act is repealed.
1992, c. 35, s. 38(1)
(2) The definition “well termination date” in subsection 101(1) of the English version of the Act is replaced by the following:
“well termination date”
« date d’abandon du puits »
« date d’abandon du puits »
“well termination date” means the date on which a well has been abandoned, completed or suspended in accordance with any applicable regulations respecting the drilling for petroleum made under the Canada Oil and Gas Operations Act.
(3) Subsection 101(1) of the French version of the Act is amended by adding the following in alphabetical order:
« date d’abandon du puits »
“well termination date”
“well termination date”
« date d’abandon du puits » Date à laquelle le puits a été abandonné ou complété ou son exploitation suspendue conformément aux règlements applicables en matière de forage pris sous le régime de la Loi sur les opérations pétrolières au Canada.
(4) Section 101 of the Act is amended by adding the following after subsection (6):
Disclosure — governments and agencies
(6.1) The National Energy Board may disclose any information or documentation that it obtains under this Act or the Canada Oil and Gas Operations Act — to officials of the Government of Canada, the government of a province or a foreign government or to the representatives of any of their agencies — for the purposes of a federal, provincial or foreign law, as the case may be, that deals primarily with a petroleum-related work or activity, including the exploration for and the management, administration and exploitation of petroleum resources, if
(a) the government or agency undertakes to keep the information or documentation confidential and not to disclose it without the Board’s written consent;
(b) the information or documentation is disclosed in accordance with any conditions agreed to by the Board and the government or agency; and
(c) in the case of disclosure to a foreign government or agency, the Minister consents in writing.
Disclosure — Minister
(6.2) The National Energy Board may disclose to the Minister the information or documentation that it has disclosed or intends to disclose under subsection (6.1), but the Minister is not to further disclose that information or documentation unless the Board consents in writing to that disclosure or the Minister is required by an Act of Parliament to disclose that information or documentation.
Consent
(6.3) For the purposes of paragraph (6.1)(a) and subsection (6.2), the National Energy Board may consent to the further disclosure of information or documentation only if the Board itself is authorized under this section to disclose it.
(5) Paragraphs 101(7)(a) to (c) of the French version of the Act are replaced by the following:
a) un puits d’exploration, si les renseignements proviennent effectivement du forage du puits et si deux ans se sont écoulés depuis la date d’abandon du puits;
b) un puits de délimitation, s’ils proviennent effectivement du forage du puits et si deux ans se sont écoulés depuis la date d’abandon du puits d’exploration en cause ou si quatre-vingt-dix jours se sont écoulés depuis la date d’abandon du puits de délimitation, selon la dernière des éventualités à survenir;
c) un puits d’exploitation, s’ils proviennent effectivement du forage du puits et si deux ans se sont écoulés depuis la date d’abandon du puits d’exploration en cause ou si soixante jours se sont écoulés depuis la date d’abandon du puits d’exploitation, selon la dernière des éventualités à survenir;
(6) Subparagraph 101(7)(d)(ii) of the French version of the Act is replaced by the following:
(ii) par ailleurs, cinq ans après leur achèvement;
(7) Subparagraph 101(7)(e)(ii) of the French version of the Act is replaced by the following:
(ii) par ailleurs, au plus tôt soit cinq ans après leur achèvement, soit après que ces terres sont devenues réserves de l’État;
(8) Section 101 of the Act is amended by adding the following after subsection (7):
Applicant and proposed work or activity
(8) Subsection (2) does not apply in respect of information regarding the applicant for an operating licence or authorization under subsection 5(1) of the Canada Oil and Gas Operations Act, or the scope, purpose, location, timing and nature of the proposed work or activity for which the authorization is sought.
Public hearing
(9) Subsection (2) does not apply in respect of information or documentation provided for the purposes of a public hearing conducted under section 5.331 of the Canada Oil and Gas Operations Act.
Safety or environmental protection
(10) Subject to section 101.1, the National Energy Board may disclose all or part of any information or documentation related to safety or environmental protection that is provided in relation to an application for an operating licence or authorization under subsection 5(1) of the Canada Oil and Gas Operations Act or to an operating licence or authorization that is issued under that subsection or provided in accordance with any regulation made under that Act. The Board is not, however, permitted to disclose information or documentation if the Board is satisfied that
(a) disclosure of it could reasonably be expected to result in a material loss or gain to a person, or to prejudice their competitive position, and the potential harm resulting from the disclosure outweighs the public interest in making the disclosure;
(b) it is financial, commercial, scientific or technical information or documentation that is confidential and has been consistently treated as such by a person who would be directly affected by its disclosure, and for which the person’s interest in confidentiality outweighs the public interest in its disclosure; or
(c) there is a real and substantial risk that disclosure of it will impair the security of pipelines, as defined in section 2 of the Canada Oil and Gas Operations Act, buildings, installations, vessels, vehicles, aircraft or systems, including computer or communication systems, used for any work or activity in respect of which that Act applies — or methods employed to protect them — and the need to prevent its disclosure outweighs the public interest in its disclosure.
Exception
(11) Subsections (8) to (10) do not apply in respect of the classes of information or documentation described in paragraphs (7)(a) to (e) and (i).
35. The Act is amended by adding the following after section 101:
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.
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.
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.
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.
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.
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).
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.
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.
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, includ-ing, 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.
36. (1) Subsection 107(1) of the Act is amended by striking out “and” at the end of paragraph (c) and by adding the following after that paragraph:
(c.1) 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 a product under this Act;
(c.2) respecting the fees or charges, or the method of calculating the fees or charges, to be paid by a holder of an interest or a share in an interest in respect of any of the National Energy Board’s or the Minister’s activities under or related to this Act;
(c.3) respecting the refund of all or part of any fee or charge referred to in paragraph (c.1) or (c.2), or the method of calculating that refund; and
(2) Section 107 of the Act is amended by adding the following after subsection (1):
Amounts not to exceed cost
(1.1) The amounts of the fees or charges referred to in paragraph (1)(c.1) shall not exceed the cost of providing the services or products.
Amounts not to exceed cost
(1.2) The amounts of the fees or charges referred to in paragraph (1)(c.2) shall not exceed the cost of performing the activities under or related to this Act.
1987, c. 3
Canada-Newfoundland Atlantic Accord Implementation Act
37. Section 2 of the Canada-Newfoundland Atlantic Accord Implementation Act is amended by adding the following in alphabetical order:
“spill-treating agent”
« agent de traitement »
« 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.
38. Section 7 of the Act is replaced by the following:
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.
39. The Act is amended by adding the following after section 29:
Cost Recovery
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.
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.
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.
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.
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.
40. Subsection 44(1) of the English version of the Act is replaced by the following:
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.
41. The Act is amended by adding the following after section 44:
Public Hearings
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.
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.
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.
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).
42. Subsection 71(5) of the French version of the Act is replaced by the following:
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).
43. (1) Subsection 76(2) of the Act is replaced by the following:
Exception
(2) No order may be made under subsection (1) with respect to any interest owner who has completed a well on the relevant portion of the offshore area within six months after the completion of that well.
(2) Subsection 76(3) of the French version of the Act is replaced by the following:
Condition
(3) Il ne peut être pris d’arrêté de forage dans les trois ans qui suivent la date d’abandon du puits qui a mis en évidence une découverte importante.
(3) Subsection 76(5) of the French version of the Act is replaced by the following:
Définition de « date d’abandon du puits »
(5) Pour l’application du paragraphe (3), la date d’abandon du puits est celle à laquelle le puits a été abandonné ou complété ou son exploitation suspendue conformément aux règlements applicables en matière de forage.
44. Subsection 99(2) of the French version of the Act is replaced by the following:
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.
45. Section 118 of the Act is amended by adding “and” at the end of paragraph (d) and by repealing paragraph (e).
46. (1) The definition “date d’abandon du forage” in subsection 119(1) of the French version of the Act is repealed.
(2) The definition “well termination date” in subsection 119(1) of the English version of the Act is replaced by the following:
“well termination date”
« date d’abandon du puits »
« date d’abandon du puits »
“well termination date” means the date on which a well has been abandoned, completed or suspended in accordance with any applicable regulations respecting the drilling for petroleum made under Part III.
(3) Subsection 119(1) of the French version of the Act is amended by adding the following in alphabetical order:
« date d’abandon du puits »
“well termination date”
“well termination date”
« date d’abandon du puits » Date à laquelle le puits a été abandonné ou complété ou son exploitation suspendue conformément aux règlements applicables en matière de forage pris sous le régime de la partie III.
(4) Subsection 119(2) of the French version of the Act is replaced by the following:
Protection des renseignements
(2) Sous réserve de l’article 18 et des autres dispositions du présent article, les renseignements fournis pour l’application de la présente partie, de la partie III ou de leurs règlements, sont, que leur fourniture soit obligatoire ou non, protégés et nul ne peut, sciemment, les communiquer sans le consentement écrit de la personne qui les a fournis, si ce n’est pour l’application de ces parties ou dans le cadre de procédures judiciaires relatives intentées à cet égard.
(5) Paragraphs 119(5)(a) to (c) of the French version of the Act are replaced by the following:
a) un puits d’exploration, si les renseignements proviennent effectivement du forage du puits et si deux ans se sont écoulés depuis la date d’abandon du puits;
b) un puits de délimitation, s’ils proviennent effectivement du forage du puits et si deux ans se sont écoulés depuis la date d’abandon du puits d’exploration en cause ou si quatre-vingt-dix jours se sont écoulés depuis la date d’abandon du puits de délimitation, selon la dernière des éventualités à survenir;
c) un puits d’exploitation, s’ils proviennent effectivement du forage du puits et si deux ans se sont écoulés depuis la date d’abandon du puits d’exploration en cause ou si soixante jours se sont écoulés depuis la date d’abandon du puits d’exploitation, selon la dernière des éventualités à survenir;
(6) Section 119 of the Act is amended by adding the following after subsection (5):
Disclosure — governments and agencies
(6) The Board may disclose any information or documentation that it obtains under this Part or Part III — to officials of the Government of Canada, the Government of the Province or any other provincial government, or a foreign government or to the representatives of any of their agencies — for the purposes of a federal, provincial or foreign law, as the case may be, that deals primarily with a petroleum-related work or activity, including the exploration for and the management, administration and exploitation of petroleum resources, if
(a) the government or agency undertakes to keep the information or documentation confidential and not to disclose it without the Board’s written consent;
(b) the information and documentation is disclosed in accordance with any conditions agreed to by the Board and the government or agency; and
(c) in the case of disclosure to a foreign government or agency, the Federal Minister and Provincial Minister consent in writing.
Disclosure — Minister
(7) The Board may disclose to the Federal Minister and Provincial Minister the information or documentation that it has disclosed or intends to disclose under subsection (6), but the Federal Minister and the Provincial Minister are not to further disclose that information or documentation unless the Board consents in writing to that disclosure or the Federal Minister or the Provincial Minister is required by an Act of Parliament or an Act of the Legislature of the Province, as the case may be, to disclose that information or documentation.
Consent
(8) For the purposes of paragraph (6)(a) and subsection (7), the Board may consent to the further disclosure of information or documentation only if the Board itself is authorized under this section to disclose it.
Applicant and proposed work or activity
(9) Subsection (2) does not apply in respect of information regarding the applicant for an operating licence or authorization under subsection 138(1) or the scope, purpose, location, timing and nature of the proposed work or activity for which the licence or authorization is sought.
Public hearing
(10) Subsection (2) does not apply in respect of information or documentation provided for the purposes of a public hearing conducted under section 44.1.
Safety or environmental protection
(11) Subject to section 119.1, the Board may disclose all or part of any information or documentation related to safety or environmental protection that is provided in relation to an application for an operating licence or authorization under subsection 138(1), or to an operating licence or authorization that is issued under that subsection or provided in accordance with any regulations made under this Part or Part III. The Board is not, however, permitted to disclose information or documentation if the Board is satisfied that
(a) disclosure of it could reasonably be expected to result in a material loss or gain to a person, or to prejudice their competitive position, and the potential harm resulting from the disclosure outweighs the public interest in making the disclosure;
(b) it is financial, commercial, scientific or technical information or documentation that is confidential and has been consistently treated as such by a person who would be directly affected by its disclosure, and for which the person’s interest in confidentiality outweighs the public interest in its disclosure; or
(c) there is a real and substantial risk that disclosure of it will impair the security of pipelines, as defined in section 135, installations, vessels, aircraft, or systems, including computer or communication systems, used for any work or activity in respect of which this Act applies — or methods employed to protect them — and the need to prevent its disclosure outweighs the public interest in its disclosure.
Exception
(12) Subsections (9) to (11) do not apply in respect of information or documentation described in paragraphs (5)(a) to (e) and (i).
47. The Act is amended by adding the following after section 119:
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.
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.
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.
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.
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.
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).
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.
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.
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.
48. Section 135.1 of the Act is amended by adding the following after paragraph (b):
(b.1) accountability in accordance with the “polluter pays” principle;
1992, c. 35, s. 57
49. Section 137.1 of the Act is replaced by the following:
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.
1992, c. 35, s. 58
50. (1) Subsection 138(3) of the Act is replaced by the following:
Requirements for operating licence
(3) An operating licence is subject to any requirements that are determined by the Board or that are prescribed and to any deposits that are prescribed.
1992, c. 35, s. 58
(2) Paragraph 138(5)(a) of the Act is replaced by the following:
(a) a requirement, approval or deposit subject to which the licence or authorization was issued;
(a.1) a fee or charge payable in accordance with regulations made under section 29.1;
1992, c. 35, s. 58
(3) Paragraph 138(5)(c) of the Act is replaced by the following:
(c) subsection 139.1(3), 139.2(2), 162.1(4) or (5) or 163(1.1), (1.2) or (5); or
51. The Act is amended by adding the following after section 138:
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.
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).
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).
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.
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).
52. (1) The Act is amended by adding the following after section 138.2:
Spill-treating Agent
Net environmental benefit
138.21 The Board shall not permit the use of a spill-treating agent in an authorization issued under paragraph 138(1)(b) unless the Board determines that the use of the spill-treating agent is likely to achieve a net environmental benefit.
(2) Section 138.21 of the Act is replaced by the following:
Net environmental benefit
138.21 The Board shall not permit the use of a spill-treating agent in an authorization issued under paragraph 138(1)(b) unless the Board determines, taking into account any prescribed factors and any factors the Board considers appropriate, that the use of the spill-treating agent is likely to achieve a net environmental benefit.
1992, c. 35, s. 58
53. Section 138.3 of the Act and the heading before it are replaced by the following:
Financial Requirements
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.
1992, c. 35, s. 63
54. (1) The portion of subsection 149(1) of the Act before paragraph (a) is replaced by the following:
Governor in Council’s regulatory power
149. (1) Subject to section 7, the Governor in Council may, for the purposes of safety, the protection of the environment, and accountability as well as for the production and conservation of petroleum resources, make regulations
1992, c. 35, s. 63
(2) Paragraph 149(1)(a) of the French version of the Act is replaced by the following:
a) définir « pétrole » et « gaz » pour l’application des sections I et II, « installation » et « équipement » pour l’application des articles 139.1 et 139.2 et « grave » pour l’application de l’article 165;
(3) Subsection 149(1) of the Act is amended by adding the following after paragraph (b):
(b.1) concerning the measures to be taken in preparation for or in the case of a spill, as defined in subsection 160(1), including measures concerning the use of a spill-treating agent;
(b.2) concerning the process for the determination of net environmental benefit;
(b.3) concerning the variation or revocation of an approval referred to in paragraph 161.1(1)(b);
(4) Subsection 149(1) of the Act is amended by striking out “and” at the end of paragraph (h) and by adding the following after that paragraph:
(h.1) establishing the requirements for a pooled fund for the purposes of subsection 163(1.01);
(h.2) concerning the circumstances under which the Board may make a recommendation for the purposes of subsection 163.1(1) and the information to be submitted with respect to that recommendation;
(h.3) concerning the creation, conservation and production of records; and
(5) Section 149 of the Act is amended by adding the following after subsection (2):
Spill-treating agents
(3) Regulations made under subsection (1) respecting a spill-treating agent shall, in addition to the requirements set out in section 7, be made on the recommendation of the Federal Minister and the Minister of the Environment.
55. The Act is amended by adding the following after section 149:
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.
Recommendation
(2) The order shall be made on the recommendation of the Federal Minister and every minister responsible for the administration of the provision.
1992, c. 35, s. 65
56. Subsection 151.1(1) of the Act is replaced by the following:
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.
1992, c. 35, s. 73(1); 2001, c. 26, s. 324(8)
57. Subsections 160(1) to (3) of the Act are replaced by the following:
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.
58. (1) The Act is amended by adding the following after section 161:
Spill-treating agents
161.1 (1) The provisions referred to in Schedule 1 do not apply to the deposit of a spill-treating agent and those referred to in Schedule 2 do not apply in respect of any harm that is caused by the spill-treating agent or by the interaction between the spill-treating agent and the spilled oil, if
(a) the authorization issued under paragraph 138(1)(b) permits the use of the spill-treating agent;
(b) the Chief Conservation Officer approves the use of the agent in response to the spill and it is used in accordance with any requirements set out in the approval; and
(c) the agent is used for the purposes of subsection 161(3) or (4).
Clarification
(2) The provisions referred to in Schedule 2 continue to apply to the holder of an authorization referred to in paragraph (1)(a) in respect of any harm that is caused by the spill or, despite subsection (1), by the interaction between the spill-treating agent and the spilled oil.
Net environmental benefit
(3) Other than in the case of a small scale-test, the approval required under paragraph (1)(b) shall be in writing and shall not be granted unless
(a) the Chief Conservation Officer has consulted with the Federal Minister and the Provincial Minister with respect to the approval;
(b) the Federal Minister has consulted with the Minister of the Environment with respect to the approval; and
(c) the Chief Conservation Officer determines that the use of the agent is likely to achieve a net environmental benefit.
(2) Paragraph 161.1(1)(b) of the Act is replaced by the following:
(b) other than in the case of a small-scale test that meets the prescribed requirements, the Chief Conservation Officer approves in writing the use of the agent in response to the spill and it is used in accordance with any requirements set out in the approval;
(3) Subsection 161.1(1) of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):
(d) the agent is used in accordance with the regulations.
(4) Subsection 161.1(3) of the Act is replaced by the following:
Net environmental benefit
(3) Other than in the case of a small-scale test, the Chief Conservation Officer shall not approve the use of a spill-treating agent unless the Officer determines, taking into account any prescribed factors and any factors the Officer considers appropriate, that the use of the spill-treating agent is likely to achieve a net environmental benefit.
59. The Act is amended by adding the following after section 161.1:
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.
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.
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.
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.
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.
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.
1992, c. 35, s. 75(1)
60. (1) Paragraphs 162(1)(a) and (b) of the Act are replaced by the following:
(a) all persons to whose fault or negligence the spill or the authorized discharge, emission or escape of petroleum is attributable or who are by law responsible for others to whose fault or negligence the spill or the authorized discharge, emission or escape of petroleum is attributable are jointly and severally liable, to the extent determined according to the degree of the fault or negligence proved against them, for
(i) all actual loss or damage incurred by any person as a result of the spill or the authorized discharge, emission or escape of petroleum or as a result of any action or measure taken in relation to the spill or the authorized discharge, emission or escape of petroleum,
(ii) the costs and expenses reasonably incurred by the Board or Her Majesty in right of Canada or the Province or any other person in taking any action or measure in relation to the spill or the authorized discharge, emission or escape of petroleum, and
(iii) all 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 any action or measure taken in relation to the spill or the authorized discharge, emission or escape of petroleum; and
(b) the person who is required to obtain an authorization under paragraph 138(1)(b) in respect of the work or activity from which the spill or the authorized discharge, emission or escape of petroleum emanated is liable, without proof of fault or negligence, up to the applicable limit of liability that is set out in subsection (2.2) for the actual loss or damage, the costs and expenses and the loss of non-use value described in subparagraphs (a)(i) to (iii).
1992, c. 35, ss. 75(2), (3)(E) and (4)
(2) Subsections 162(2) to (3) of the Act are replaced by the following:
Recovery of loss, etc., caused by debris
(2) 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 the Board or Her 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; and
(b) the person who is required to obtain an authorization under paragraph 138(1)(b) 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 that is set out in subsection (2.2), for that loss, actual loss or damage, and for those costs and expenses.
Vicarious liability for contractors
(2.1) A person who is required to obtain an authorization under paragraph 138(1)(b) 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) or (2)(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 subparagraphs (1)(a)(i) to (iii) and subsection (2).
Limits of liability
(2.2) For the purposes of paragraphs (1)(b) and (2)(b), the limits of liability are
(a) in respect of any area of land or submarine area referred to in paragraph 6(1)(a) of the Arctic Waters Pollution Prevention Act, the amount by which $1 billion exceeds the amount prescribed under section 9 of that Act in respect of any activity or undertaking engaged in or carried on by any person described in paragraph 6(1)(a) of that Act; and
(b) in respect of any area to which this Act applies and to which paragraph (a) does not apply, the amount of $1 billion.
Increase in limits of liability
(2.3) Subject to section 7, the Governor in Council may, by regulation, increase the amounts referred to in subsection (2.2).
Liability under another law — paragraph (1)(b) or (2)(b)
(2.4) If a person is liable under paragraph (1)(b) or (2)(b) 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 that is set out in subsection (2.2) 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 limits set out in subsection (2.2) do not apply.
Costs and expenses not recoverable under Fisheries Act
(2.5) The costs and expenses that are recov-erable by Her Majesty in right of Canada or the Province under this section are not recoverable under subsection 42(1) of the Fisheries Act.
Action — loss of non-use value
(2.6) Only Her Majesty in right of Canada or the Province may bring an action to recover a loss of non-use value described in subsections (1) and (2).
Claims
(3) All claims under this section may be sued for and recovered in any court of competent jurisdiction in Canada and shall rank, firstly, in favour of persons incurring actual loss or damage described in subsections (1) and (2), without preference, secondly, without preference, to meet any costs and expenses described in those subsections and, lastly, to recover a loss of non-use value described in those subsections.
(3) The portion of subsection 162(4) of the Act before paragraph (a) is replaced by the following:
Saving
(4) Subject to subsections (2.5) and (2.6), nothing in this section suspends or limits
(4) Subsection 162(5) of the French version of the Act is replaced by the following:
Prescription
(5) Les poursuites en recouvrement de créances fondées sur le présent article se prescrivent par trois ans après la date des pertes, dommages ou frais et par six ans après la date des déversements, dégagements, écoulements ou rejets ou après la date où s’est manifestée la présence des débris.
61. The Act is amended by adding the following after section 162:
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.
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.
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.
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.
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.
1992, c. 35, s. 76
62. (1) Subsections 163(1) to (2) of the Act are replaced by the following:
Financial responsibility
163. (1) An applicant for an authorization under paragraph 138(1)(b) shall provide proof of financial responsibility in the form of a letter of credit, guarantee or indemnity bond or in any other form satisfactory to the Board,
(a) in the case of the drilling for or development or production of petroleum in the offshore area, in the amount of $100 million or, if the Board considers it necessary, in a greater amount that it determines; or
(b) in any other case, in an amount that is satisfactory to, and determined by, the Board.
Pooled fund
(1.01) An applicant to which paragraph (1)(a) applies may, rather than provide proof of financial responsibility in the amount referred to in that paragraph, provide proof that it participates in a pooled fund that is established by the oil and gas industry, that is maintained at a minimum of $250 million and that meets any other requirements that are established by regulation.
Increase in amount by regulation
(1.02) Subject to section 7, the Governor in Council may, by regulation, increase the amount referred to in subsection (1.01).
Continuing obligation
(1.1) The holder of an authorization under paragraph 138(1)(b) shall ensure that the proof of financial responsibility referred to in subsection (1) or (1.01) remains in force for the duration of the work or activity in respect of which the authorization is issued.
Extended obligation
(1.2) The holder of an authorization under paragraph 138(1)(b) shall also ensure that the proof referred to in paragraph (1)(a) or subsection (1.01) 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 — other than in the case of a holder that participates in a pooled fund — that the proof that is to remain in force during that period is for an amount that is less than the amount referred to in paragraph (1)(a) and that is determined by the Board.
Payment of claims
(2) The Board may require that moneys in an amount not exceeding the amount prescribed for any case or class of cases, or determined by the Board in the absence of regulations, be paid out of the funds available under the letter of credit, guarantee or indemnity bond or other form of financial responsibility provided under subsection (1), or be paid out of the pooled fund referred to in subsection (1.01), in respect of any claim for which proceedings may be instituted under section 162, whether or not those proceedings have been instituted.
(2) Section 163 of the Act is amended by adding the following after subsection (4):
Reimbursement of pooled fund
(5) The holder of an authorization under paragraph 138(1)(b) that is liable for a discharge, emission or escape of petroleum that is authorized by regulation or for any spill or debris in respect of which a payment has been made under subsection (2) out of the pooled fund, shall reimburse the amount of the payment in the prescribed manner.
63. The Act is amended by adding the following after section 163:
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).
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.
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.
64. Section 194 of the Act is amended by adding the following after subsection (2):
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 sentenc-ing 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.
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.
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.
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.
65. Section 196 of the Act is replaced by the following:
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.
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.
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.
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.
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.
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.
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.
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.
66. The Act is amended by adding the following after section 202:
Administrative Monetary Penalties
Powers
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.
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.
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
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.
Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Part and not to punish.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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).
Restriction
(2) The Board shall conduct the review if the notice of violation was issued by a person designated under paragraph 202.02(d).
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.
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.
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.
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).
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.
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
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.
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
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.
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.
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).
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
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.
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.
67. Subsection 212(2) of the French version of the Act is replaced by the following:
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.
68. Subsection 233(2) of the Act is replaced by the following:
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.
1993, c. 28, s. 78, Sch. III, s. 8.2 and 1998, c. 15, s. 18; 1994, c. 41, par. 37(1)(a); 2002, c. 7, s. 109(E); 2007, c. 29, s. 80
69. Parts V and VI of the Act are repealed.
70. The Act is amended by adding, after section 239, the Schedules 1 and 2 set out in Schedule 2 to this Act.
1988, c. 28
Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act
71. Section 2 of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act is amended by adding the following in alphabetical order:
“spill-treating agent”
« agent de traitement »
« 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.
72. Section 6 of the Act is replaced by the following:
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.
73. Subsection 25(5) of the French version of the Act is replaced by the following:
Effet de la décision
(5) La décision du comité est définitive et lie les deux gouvernements.
74. The Act is amended by adding the following after section 30:
Cost Recovery
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.
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.
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.
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.
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.
75. Paragraph 39(1)(c) of the Act is replaced by the following:
(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.
76. Subsection 44(1) of the French version of the Act is replaced by the following:
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.
77. The Act is amended by adding the following after section 44:
Public Hearings
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.
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.
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.
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).
78. (1) Subsection 79(2) of the Act is replaced by the following:
Exception
(2) No order may be made under subsection (1) with respect to any interest owner who has completed a well on the relevant portion of the offshore area within six months after the completion of that well.
(2) Subsection 79(3) of the French version of the Act is replaced by the following:
Condition
(3) Il ne peut être pris d’arrêté de forage dans les trois ans qui suivent la date d’abandon du puits qui a mis en évidence une découverte importante.
(3) Subsection 79(5) of the French version of the Act is replaced by the following:
Définition de « date d’abandon du puits »
(5) Pour l’application du paragraphe (3), la date d’abandon du puits est celle à laquelle le puits a été abandonné ou complété ou son exploitation suspendue conformément aux règlements applicables en matière de forage.
79. Subsection 99(4) of the French version of the Act is replaced by the following:
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).
80. Subsection 101(2) of the French version of the Act is replaced by the following:
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.
81. Section 121 of the Act is amended by adding “and” at the end of paragraph (d) and by repealing paragraph (e).
82. (1) The definition “date d’abandon du forage” in subsection 122(1) of the French version of the Act is repealed.
(2) The definition “well termination date” in subsection 122(1) of the English version of the Act is replaced by the following:
“well termination date”
« date d’abandon du puits »
« date d’abandon du puits »
“well termination date” means the date on which a well has been abandoned, completed or suspended in accordance with any applicable regulations respecting the drilling for petroleum made under Part III.
(3) Subsection 122(1) of the French version of the Act is amended by adding the following in alphabetical order:
« date d’abandon du puits »
“well termination date”
“well termination date”
« date d’abandon du puits » Date à laquelle le puits a été abandonné ou complété ou son exploitation suspendue conformément aux règlements applicables en matière de forage pris sous le régime de la partie III.
(4) Subsection 122(2) of the French version of the Act is replaced by the following:
Protection des renseignements
(2) Sous réserve de l’article 19 et des autres dispositions du présent article, les renseignements fournis pour l’application de la présente partie, de la partie III ou de leurs règlements, sont, que leur fourniture soit obligatoire ou non, protégés et nul ne peut, sciemment, les communiquer sans le consentement écrit de la personne qui les a fournis, si ce n’est pour l’application de ces parties ou dans le cadre de procédures judiciaires relatives intentées à cet égard.
(5) Paragraphs 122(5)(a) to (c) of the French version of the Act are replaced by the following:
a) un puits d’exploration, si les renseignements proviennent effectivement du forage du puits et si deux ans se sont écoulés depuis la date d’abandon du puits;
b) un puits de délimitation, s’ils proviennent effectivement du forage du puits et si deux ans se sont écoulés depuis la date d’abandon du puits d’exploration en cause ou si quatre-vingt-dix jours se sont écoulés depuis la date d’abandon du puits de délimitation, selon la dernière des éventualités à survenir;
c) un puits d’exploitation, s’ils proviennent effectivement du forage du puits et si deux ans se sont écoulés depuis la date d’abandon du puits d’exploration en cause ou si soixante jours se sont écoulés depuis la date d’abandon du puits d’exploitation, selon la dernière des éventualités à survenir;
(6) Subparagraph 122(5)(d)(ii) of the French version of the Act of the French version of the Act is replaced by the following:
(ii) par ailleurs, cinq ans après leur achèvement;
(7) Section 122 of the Act is amended by adding the following after subsection (5):
Disclosure — governments and agencies
(6) The Board may disclose any information or documentation that it obtains under this Part or Part III — to officials of the Government of Canada, the Government of the Province or any other provincial government, or a foreign government or to the representatives of any of their agencies — for the purposes of a federal, provincial or foreign law, as the case may be, that deals primarily with a petroleum-related work or activity, including the exploration for and the management, administration and exploitation of petroleum resources, if
(a) the government or agency undertakes to keep the information or documentation confidential and not to disclose it without the Board’s written consent;
(b) the information and documentation is disclosed in accordance with any conditions agreed to by the Board and the government or agency; and
(c) in the case of disclosure to a foreign government or agency, the Federal Minister and Provincial Minister consent in writing.
Disclosure — Minister
(7) The Board may disclose to the Federal Minister and Provincial Minister the information or documentation that it has disclosed or intends to disclose under subsection (6), but the Federal Minister and the Provincial Minister are not to further disclose that information or documentation unless the Board consents in writing to that disclosure or the Federal Minister or the Provincial Minister is required by an Act of Parliament or an Act of the Legislature of the Province, as the case may be, to disclose that information or documentation.
Consent
(8) For the purposes of paragraph (6)(a) and subsection (7), the Board may consent to the further disclosure of information or documentation only if the Board itself is authorized under this section to disclose it.
Applicant and proposed work or activity
(9) Subsection (2) does not apply in respect of information regarding the applicant for an operating licence or authorization under subsection 142(1) or the scope, purpose, location, timing and nature of the proposed work or activity for which the authorization is sought.
Public hearing
(10) Subsection (2) does not apply in respect of information or documentation provided for the purposes of a public hearing conducted under section 44.1.
Safety or environmental protection
(11) Subject to section 122.1, the Board may disclose all or part of any information or documentation related to safety or environmental protection that is provided in relation to an application for an operating licence or authorization under subsection 142(1) or to an operating licence or authorization that is issued under that subsection or provided in accordance with any regulation made under this Part or Part III. The Board is not, however, permitted to disclose information or documentation if the Board is satisfied that
(a) disclosure of it could reasonably be expected to result in a material loss or gain to a person, or to prejudice their competitive position, and the potential harm resulting from the disclosure outweighs the public interest in making the disclosure;
(b) it is financial, commercial, scientific or technical information or documentation that is confidential and has been consistently treated as such by a person who would be directly affected by its disclosure, and for which the person’s interest in confidentiality outweighs the public interest in its disclosure; or
(c) there is a real and substantial risk that disclosure of it will impair the security of pipelines, as defined in section 138, installations, vessels, aircraft or systems, including computer or communication systems, used for any work or activity in respect of which this Act applies — or methods employed to protect them — and the need to prevent its disclosure outweighs the public interest in its disclosure.
Exception
(12) Subsections (9) to (11) do not apply in respect of information or documentation described in paragraphs (5)(a) to (e) and (i).
83. The Act is amended by adding the following after section 122:
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.
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.
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.
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.
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.
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).
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.
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.
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.
84. Section 138.1 of the Act is amended by adding the following after paragraph (b):
(b.1) accountability in accordance with the “polluter pays” principle;
1992, c. 35, s. 95
85. Section 141.1 of the Act is replaced by the following:
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.
1992, c. 35, s. 96
86. (1) Subsection 142(3) of the Act is replaced by the following:
Requirements for operating licence
(3) An operating licence is subject to any requirements that are determined by the Board or that are prescribed and to any deposits that are prescribed.
1992, c. 35, s. 96
(2) Paragraph 142(5)(a) of the Act is replaced by the following:
(a) a requirement, approval or deposit subject to which the licence or authorization was issued;
(a.1) a fee or charge payable in accordance with regulations made under section 30.1;
1992, c. 35, s. 96
(3) Paragraph 142(5)(c) of the Act is replaced by the following:
(c) subsection 143.1(3), 143.2(2), 167.1(4) or (5) or 168(1.1), (1.2) or (5); or
87. The Act is amended by adding the following before section 142.1:
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.
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).
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).
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.
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).
88. (1) The Act is amended by adding the following after section 142.2:
Spill-treating Agent
Net environmental benefit
142.21 The Board shall not permit the use of a spill-treating agent in an authorization issued under paragraph 142(1)(b) unless the Board determines that the use of the spill-treating agent is likely to achieve a net environmental benefit.
(2) Section 142.21 of the Act is replaced by the following:
Net environmental benefit
142.21 The Board shall not permit the use of a spill-treating agent in an authorization issued under paragraph 142(1)(b) unless the Board determines, taking into account any prescribed factors and any factors the Board considers appropriate, that the use of the spill-treating agent is likely to achieve a net environmental benefit.
1992, c. 35, s. 96
89. Section 142.3 of the Act and the heading before it are replaced by the following:
Financial Requirements
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.
1992, c. 35, s. 101
90. (1) The portion of subsection 153(1) of the Act before paragraph (a) is replaced by the following:
Governor in Council’s regulatory power
153. (1) Subject to section 6, the Governor in Council may, for the purposes of safety, the protection of the environment, and accountability as well as for the production and conservation of petroleum resources, make regulations
(2) Subsection 153(1) of the Act is amended by adding the following after paragraph (b):
(b.1) concerning the measures to be taken in preparation for or in the case of a spill, as defined in subsection 165(1), including measures concerning the use of a spill-treating agent;
(b.2) concerning the process for the determination of net environmental benefit;
(b.3) concerning the variation or revocation of an approval referred to in paragraph 166.1(1)(b);
(3) Subsection 153(1) of the Act is amended by striking out “and” at the end of paragraph (h) and by adding the following after that paragraph:
(h.1) establishing the requirements for a pooled fund for the purposes of subsection 168(1.01);
(h.2) concerning the circumstances under which the Board may make a recommendation for the purposes of subsection 168.1(1) and the information to be submitted with respect to that recommendation;
(h.3) concerning the creation, conservation and production of records; and
(4) Section 153 of the Act is amended by adding the following after subsection (2):
Spill-treating agents
(3) Regulations made under subsection (1) respecting a spill-treating agent shall, in addition to the requirements set out in section 6, be made on the recommendation of the Federal Minister and the Minister of the Environment.
91. The Act is amended by adding the following after section 153:
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.
Recommendation
(2) The order shall be made on the recommendation of the Federal Minister and every minister responsible for the administration of the provision.
92. Subsection 156(1) of the Act is replaced by the following:
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.
1992, c. 35, s. 110(1); 2001, c. 26, s. 324(9)
93. Subsections 165(1) to (3) of the Act are replaced by the following:
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.
94. (1) The Act is amended by adding the following after section 166:
Spill-treating agents
166.1 (1) The provisions referred to in Schedule V do not apply to the deposit of a spill-treating agent and those referred to in Schedule VI do not apply in respect of any harm that is caused by the spill-treating agent or by the interaction between the spill-treating agent and the spilled oil, if
(a) the authorization issued under paragraph 142(1)(b) permits the use of the spill-treating agent;
(b) the Chief Conservation Officer approves the use of the agent in response to the spill and it is used in accordance with any requirements set out in the approval; and
(c) the agent is used for the purposes of subsection 166(3) or (4).
Clarification
(2) The provisions referred to in Schedule VI continue to apply to the holder of an authorization referred to in paragraph (1)(a) in respect of any harm that is caused by the spill or, despite subsection (1), by the interaction between the spill-treating agent and the spilled oil.
Net environmental benefit
(3) Other than in the case of a small-scale test, the approval required under paragraph (1)(b) shall be in writing and shall not be granted unless
(a) the Chief Conservation Officer has consulted with the Federal Minister and the Provincial Minister with respect to the approval;
(b) the Federal Minister has consulted with the Minister of the Environment with respect to the approval; and
(c) the Chief Conservation Officer determines that the use of the agent is likely to achieve a net environmental benefit.
(2) Paragraph 166.1(1)(b) of the Act is replaced by the following:
(b) other than in the case of a small-scale test that meets the prescribed requirements, the Chief Conservation Officer approves in writing the use of the agent in response to the spill and it is used in accordance with any requirements set out in the approval;
(3) Subsection 166.1(1) of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):
(d) the agent is used in accordance with the regulations.
(4) Subsection 166.1(3) of the Act is replaced by the following:
Net environmental benefit
(3) Other than in the case of a small-scale test, the Chief Conservation Officer shall not approve the use of a spill-treating agent unless the Officer determines, taking into account any prescribed factors and any factors the Officer considers appropriate, that the use of the spill-treating agent is likely to achieve a net environmental benefit.
95. The Act is amended by adding the following after section 166.1:
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.
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.
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.
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.
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.
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.
1992, c. 35, s. 112(1)
96. (1) Paragraphs 167(1)(a) and (b) of the Act are replaced by the following:
(a) all persons to whose fault or negligence the spill or the authorized discharge, emission or escape of petroleum is attributable or who are by law responsible for others to whose fault or negligence the spill or the authorized discharge, emission or escape of petroleum is attributable are jointly and severally liable, to the extent determined according to the degree of the fault or negligence proved against them, for
(i) all actual loss or damage incurred by any person as a result of the spill or the authorized discharge, emission or escape of petroleum or as a result of any action or measure taken in relation to the spill or the authorized discharge, emission or escape of petroleum,
(ii) the costs and expenses reasonably incurred by the Board or Her Majesty in right of Canada or the Province or any other person in taking any action or measure in relation to the spill or the authorized discharge, emission or escape of petroleum, and
(iii) all 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 any action or measure taken in relation to the spill or the authorized discharge, emission or escape of petroleum; and
(b) the person who is required to obtain an authorization under paragraph 142(1)(b) in respect of the work or activity from which the spill or the authorized discharge, emission or escape of petroleum emanated is liable, without proof of fault or negligence, up to the applicable limit of liability that is set out in subsection (2.2) for the actual loss or damage, the costs and expenses and the loss of non-use value described in subparagraphs (a)(i) to (iii).
1992, c. 35, ss. 112(2), (3)(E) and (4)
(2) Subsections 167(2) to (3) of the Act are replaced by the following:
Recovery of loss, etc., caused by debris
(2) 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 the Board or Her 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; and
(b) the person who is required to obtain an authorization under paragraph 142(1)(b) 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 that is set out in subsection (2.2), for that loss, actual loss or damage, and for those costs and expenses.
Vicarious liability for contractors
(2.1) A person who is required to obtain an authorization under paragraph 142(1)(b) 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) or (2)(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 subparagraphs (1)(a)(i) to (iii) and subsection (2).
Limit of liability
(2.2) For the purposes of paragraphs (1)(b) and (2)(b), the limit of liability is $1 billion.
Increase in limit of liability
(2.3) Subject to section 6, the Governor in Council may, by regulation, increase the amount referred to in subsection (2.2).
Liability under another law — paragraph (1)(b) or (2)(b)
(2.4) If a person is liable under paragraph (1)(b) or (2)(b) 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 (2.2) 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 limits set out in subsection (2.2) do not apply.
Costs and expenses not recoverable under Fisheries Act
(2.5) The costs and expenses that are recov-erable by Her Majesty in right of Canada or the Province under this section are not recoverable under subsection 42(1) of the Fisheries Act.
Action — loss of non-use value
(2.6) Only Her Majesty in right of Canada or the Province may bring an action to recover a loss of non-use value described in subsections (1) and (2).
Claims
(3) All claims under this section may be sued for and recovered in any court of competent jurisdiction in Canada and shall rank, firstly, in favour of persons incurring actual loss or damage, described in subsections (1) and (2), without preference, secondly, without preference, to meet any costs and expenses described in those subsections and, lastly, to recover a loss of non-use value described in those subsections.
(3) The portion of subsection 167(4) of the Act before paragraph (a) is replaced by the following:
Saving
(4) Subject to subsections (2.5) and (2.6), nothing in this section suspends or limits
(4) Subsection 167(5) of the French version of the Act is replaced by the following:
Prescription
(5) Les poursuites en recouvrement de créances fondées sur le présent article se prescrivent par trois ans après la date des pertes, dommages ou frais et par six ans après la date des déversements, dégagements, écoulements ou rejets ou après la date où s’est manifestée la présence des débris.
97. The Act is amended by adding the following after section 167:
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.
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.
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.
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.
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.
1992, c. 35, s. 113
98. (1) Subsections 168(1) to (2) of the Act are replaced by the following:
Financial responsibility
168. (1) An applicant for an authorization under paragraph 142(1)(b) shall provide proof of financial responsibility in the form of a letter of credit, guarantee or indemnity bond or in any other form satisfactory to the Board,
(a) in the case of the drilling for or development or production of petroleum in the offshore area, in the amount of $100 million or, if the Board considers it necessary, in a greater amount that it determines; or
(b) in any other case, in an amount that is satisfactory to, and determined by, the Board.
Pooled fund
(1.01) An applicant to which paragraph (1)(a) applies may, rather than provide proof of financial responsibility in the amount referred to in that paragraph, provide proof that it participates in a pooled fund that is established by the oil and gas industry, that is maintained at a minimum of $250 million and that meets any other requirements that are established by regulation.
Increase in amount by regulation
(1.02) Subject to section 6, the Governor in Council may, by regulation, increase the amount referred to in subsection (1.01).
Continuing obligation
(1.1) The holder of an authorization under paragraph 142(1)(b) shall ensure that the proof of financial responsibility referred to in subsection (1) or (1.01) remains in force for the duration of the work or activity in respect of which the authorization is issued.
Extended obligation
(1.2) The holder of an authorization under paragraph 142(1)(b) shall also ensure that the proof referred to in paragraph (1)(a) or subsection (1.01) 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 — other than in the case of a holder that participates in a pooled fund — that the proof that is to remain in force during that period is for an amount that is less than the amount referred to in paragraph (1)(a) and that is determined by the Board.
Payment of claims
(2) The Board may require that moneys in an amount not exceeding the amount prescribed for any case or class of cases, or determined by the Board in the absence of regulations, be paid out of the funds available under the letter of credit, guarantee or indemnity bond or other form of financial responsibility provided under subsection (1), or be paid out of the pooled fund referred to in subsection (1.01), in respect of any claim for which proceedings may be instituted under section 167, whether or not those proceedings have been instituted.
(2) Section 168 of the Act is amended by adding the following after subsection (4):
Reimbursement of pooled fund
(5) The holder of an authorization under paragraph 142(1)(b) that is liable for a discharge, emission or escape of petroleum that is authorized by regulation or for any spill or debris in respect of which a payment has been made under subsection (2) out of the pooled fund, shall reimburse the amount of the payment in the prescribed manner.
99. The Act is amended by adding the following after section 168:
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).
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.
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.
100. Section 199 of the Act is amended by adding the following after subsection (2):
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 sentenc-ing 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.
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.
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.
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.
101. Section 201 of the Act is replaced by the following:
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.
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.
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.
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.
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.
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.
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.
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.
102. The Act is amended by adding the following after section 207:
Administrative Monetary Penalties
Powers
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.
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.
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
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.
Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Part and not to punish.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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).
Restriction
(2) The Board shall conduct the review if the notice of violation was issued by a person designated under paragraph 207.02(d).
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.
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.
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.
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).
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.
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
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.
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
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.
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.
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).
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
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.
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.
103. Subsection 217(2) of the French version of the Act is replaced by the following:
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.
1993, c. 28, s. 78, Sch. III, s. 8.3 and 1998, c. 15, s. 18; 2002, c. 7, s. 110(E)
104. Parts V and VI of the Act are repealed.
105. Subsection 246(2) of the Act is repealed.
106. Subsection 247(5) of the Act is replaced by the following:
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.
107. The Act is amended by adding the following after section 247:
Definitions
247.1 (1) The following definitions apply in this section.
“Fiscal Arrangements Act”
« loi de 1977 »
« 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 »
« moyenne nationale »
“national average per capita fiscal capacity” means the per capita fiscal capacity of all of the provinces.
“province”
« province »
« province »
“province” does not include Yukon, the Northwest Territories or Nunavut.
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.
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).
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.
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.
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.
Terminology
108. Schedule IV to the French version of the Act is amended by replacing “Règlement sur les terres pétrolifères et gazéifères du Canada” in the bracketed text under the heading “LIMITES DE LA PARTIE DE LA ZONE EXTRACÔTIÈRE MENTIONNÉE AUX ARTICLES 104 ET 141” with “Règlement sur les terres pétrolifères et gazifères du Canada”.
109. The Act is amended by adding, after Schedule IV, the Schedules V and VI set out in Schedule 3 to this Act.
Consequential Amendments
2005, c. 30, s. 85
Nova Scotia and Newfoundland and Labrador Additional Fiscal Equalization Offset Payments Act
110. The definition “fiscal equalization offset payment” in section 4 of the Nova Scotia and Newfoundland and Labrador Additional Fiscal Equalization Offset Payments Act is repealed.
111. (1) The formula in section 8 of the Act is replaced by the following:
A – B
(2) Section 8 of the Act is amended by adding “and” at the end of the description of A, by striking out “and” at the end of the description of B and by repealing the description of C.
112. Section 11 of the Act is repealed.
113. The definition “fiscal equalization offset payment” in section 18 of the Act is repealed.
114. (1) The formula in section 22 of the Act is replaced by the following:
A – B
(2) Section 22 of the Act is amended by adding “and” at the end of the description of A, by striking out “and” at the end of the description of B and by repealing the description of C.
115. Section 25 of the Act is repealed.
2007, c. 35
Budget and Economic Statement Implementation Act, 2007
116. Section 174 of the Budget and Economic Statement Implementation Act, 2007 is repealed.
Coordinating Amendments
Bill C-5
117. (1) Subsections (2) to (31) apply if Bill C-5, introduced in the 2nd session of the 41st Parliament and entitled the Offshore Health and Safety Act (in this section referred to as the “other Act”), receives royal assent.
(2) If section 3 of the other Act comes into force before section 37 of this Act, then that section 37 and the heading before it are replaced by the following:
1987, c. 3
Canada–Newfoundland and Labrador Atlantic Accord Implementation Act
37. Section 2 of the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act is amended by adding the following in alphabetical order:
“spill-treating agent”
« agent de traitement »
« 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.
(3) If section 3 of the other Act comes into force on the same day as section 37 of this Act, then that section 3 is deemed to have come into force before that section 37, and subsection (2) applies as a consequence.
(4) If section 5 of the other Act comes into force before section 38 of this Act, then that section 38 is replaced by the following:
38. Subsection 7(1) of the Act is replaced by the following:
Provincial Minister’s approval
7. (1) 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), 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.
(5) If section 38 of this Act comes into force before section 5 of the other Act, then, on the day on which that section 5 comes into force, subsection 7(1) of chapter 3 of the Statutes of Canada, 1987, is replaced by the following:
Provincial Minister’s approval
7. (1) 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), 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.
(6) If section 5 of the other Act comes into force on the same day as section 38 of this Act, then that section 38 is deemed to have come into force before that section 5, and subsection (5) applies as a consequence.
(7) On the first day on which both section 5 of the other Act and subsection 54(5) of this Act are in force, subsection 149(3) of chapter 3 of the Statutes of Canada, 1987, is replaced by the following:
Spill-treating agents
(3) Regulations made under subsection (1) respecting a spill-treating agent shall, in addition to the requirements set out in subsection 7(1), be made on the recommendation of the Federal Minister and the Minister of the Environment.
(8) If subsection 22(3) of the other Act comes into force before subsection 50(2) of this Act, then, on the day on which that subsection 50(2) comes into force, paragraph 138(5)(a) of chapter 3 of the Statutes of Canada, 1987, is replaced by the following:
(a) a requirement, approval or deposit, determined by the Board in accordance with the provisions of this Part or Part III.1 or granted or prescribed by regulations made under either of those Parts, subject to which the licence or authorization was issued;
(9) If subsection 50(2) of this Act comes into force before subsection 22(3) of the other Act, then that subsection 22(3) is replaced by the following:
(3) Paragraph 138(5)(a) of the Act is replaced by the following:
(a) a requirement, approval or deposit, determined by the Board in accordance with the provisions of this Part or Part III.1 or granted or prescribed by regulations made under either of those Parts, subject to which the licence or authorization was issued;
(3.1) Paragraph 138(5)(b) of the Act is replaced by the following:
(b) a requirement undertaken in a declaration referred to in subsection 139.1(1);
(10) If subsection 50(2) of this Act comes into force on the same day as subsection 22(3) of the other Act, then that subsection 22(3) is deemed to have come into force before that subsection 50(2), and subsection (8) applies as a consequence.
(11) If subsection 22(4) of the other Act comes into force before subsection 50(3) of this Act, then, on the day on which that subsection 50(3) comes into force, paragraph 138(5)(c) of the English version of chapter 3 of the Statutes of Canada, 1987, is replaced by the following:
(c) subsection 139.1(3), 139.2(2), 162.1(4) or (5) or 163(1.1), (1.2) or (5);
(12) If subsection 22(4) of the other Act comes into force on the same day as subsection 50(3) of this Act, then that subsection 50(3) is deemed to have come into force before that subsection 22(4).
(13) On the first day on which both subsection 194(3) of chapter 3 of the Statutes of Canada, 1987, as enacted by subsection 39(3) of the other Act, and subsection 194(3) of chapter 3 of the Statutes of Canada, 1987, as enacted by subsection 64 of this Act, are in force, subsection 194(3) of chapter 3 of the Statutes of Canada, 1987, as enacted by subsection 39(3) of the other Act, is renumbered as subsection 194(4.4) and is repositioned accordingly if required.
(14) On the first day on which both section 40 of the other Act and section 65 of this Act are in force,
(a) sections 195.2 to 195.5 of chapter 3 of the Statutes of Canada, 1987, are repealed; and
(b) subsection 196(1) of chapter 3 of the Statutes of Canada, 1987, is replaced by the following:
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 take any meas-ures that the court considers appropriate to avoid any injury or damage that may result from the act or omission that constituted the offence, or to remedy any injury or damage resulting from it;
(d) 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;
(e) directing the offender to make changes to their environmental management system that are satisfactory to the Board;
(f) 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;
(g) 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;
(h) directing the offender to pay to the Board an amount of money that the court considers appropriate for the purpose of conducting research, education and training in matters related to the protection of the environment, conservation of petroleum resources or safety of petroleum operations;
(i) 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;
(j) directing the offender to submit to the Chief Safety Officer, on application by the Chief Safety Officer within three years after the conviction, any information with respect to the offender’s activities that the court considers appropriate in the circumstances;
(k) 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;
(l) 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;
(m) directing the offender to perform community service, subject to any reasonable conditions that may be imposed by the court;
(n) 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;
(o) 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;
(p) 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;
(q) 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.
(15) On the first day on which both section 202.1 of chapter 3 of the Statutes of Canada, 1987, as enacted by section 43 of the other Act, and section 202.1 of chapter 3 of the Statutes of Canada, 1987, as enacted by section 66 of this Act, are in force, section 202.1 of chapter 3 of the Statutes of Canada, 1987, as enacted by section 43 of the other Act is renumbered as section 202.001 and, if necessary, is repositioned after section 202.
(16) If section 56 of the other Act comes into force before section 72 of this Act, then that section 72 is replaced by the following:
72. Subsection 6(1) of the Act is replaced by the following:
Provincial Minister’s approval
6. (1) 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), 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.
(17) If section 72 of this Act comes into force before section 56 of the other Act, then, on the day on which that section 56 comes into force, subsection 6(1) of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act is replaced by the following:
Provincial Minister’s approval
6. (1) 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), 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.
(18) If section 56 of the other Act comes into force on the same day as section 72 of this Act, then that section 72 is deemed to have come into force before that section 56 and subsection (17) applies as a consequence.
(19) On the first day on which both section 56 of the other Act and subsection 90(4) of this Act are in force, subsection 153(3) of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act is replaced by the following:
Spill-treating agents
(3) Regulations made under subsection (1) respecting a spill-treating agent shall, in addition to the requirements set out in subsection 6(1), be made on the recommendation of the Federal Minister and the Minister of the Environment.
(20) If subsection 64(3) of the other Act comes into force before subsection 86(2) of this Act, then, on the day on which that subsection 86(2) comes into force, paragraph 142(5)(a) of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act is replaced by the following:
(a) a requirement, approval or deposit, determined by the Board in accordance with the provisions of this Part or Part III.1 or granted or prescribed by regulations made under either of those Parts, subject to which the licence or authorization was issued;
(21) If subsection 86(2) of this Act comes into force before subsection 64(3) of the other Act, then that subsection 64(3) is replaced by the following:
(3) Paragraph 142(5)(a) of the Act is replaced by the following:
(a) a requirement, approval or deposit, determined by the Board in accordance with the provisions of this Part or Part III.1 or granted or prescribed by regulations made under either of those Parts, subject to which the licence or authorization was issued;
(3.1) Paragraph 142(5)(b) of the Act is replaced by the following:
(b) a requirement undertaken in a declaration referred to in subsection 143.1(1);
(22) If subsection 86(2) of this Act comes into force on the same day as subsection 64(3) of the other Act, then that section 64(3) is deemed to have come into force before that subsection 86(2) and subsection (20) applies as a consequence.
(23) If subsection 64(4) of the other Act comes into force before subsection 86(3) of this Act, then, on the day on which that subsection 86(3) comes into force, paragraph 142(5)(c) of the English version of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act is replaced by the following:
(c) subsection 143.1(3), 143.2(2), 167.1(4) or (5) or 168(1.1), (1.2) or (5);
(24) If subsection 64(4) of the other Act comes into force on the same day as subsection 86(3) of this Act, then that subsection 86(3) is deemed to have come into force before that subsection 64(4).
(25) On the first day on which both subsection 199(3) of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, as enacted by subsection 78(3) of the other Act, and subsection 199(3) of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, as enacted by section 100 of this Act, are in force, subsection 199(3) of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, as enacted by subsection 78(3) of the other Act, is renumbered as subsection 199(4.4) and is repositioned accordingly if required.
(26) On the first day on which both section 79 of the other Act and section 101 of this Act are in force,
(a) sections 200.2 to 200.5 of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act are repealed; and
(b) subsection 201(1) of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act is replaced by the following:
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 take any meas-ures that the court considers appropriate to avoid any injury or damage that may result from the act or omission that constituted the offence, or to remedy any injury or damage resulting from it;
(d) 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;
(e) directing the offender to make changes to their environmental management system that are satisfactory to the Board;
(f) 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;
(g) 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;
(h) directing the offender to pay to the Board an amount of money that the court considers appropriate for the purpose of conducting research, education and training in matters related to the protection of the environment, conservation of petroleum resources or safety of petroleum operations;
(i) 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;
(j) directing the offender to submit to the Chief Safety Officer, on application by the Chief Safety Officer within three years after the conviction, any information with respect to the offender’s activities that the court considers appropriate in the circumstances;
(k) 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;
(l) 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;
(m) directing the offender to perform community service, subject to any reasonable conditions that may be imposed by the court;
(n) 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;
(o) 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;
(p) 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;
(q) 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.
(27) On the first day on which both section 207.1 of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, as enacted by section 82 of the other Act, and section 207.1 of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, as enacted by section 102 of this Act, are in force, section 207.1 of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, as enacted by section 82 of the other Act, is renumbered as section 207.001 and, if necessary, is repositioned after section 207.
(28) If section 112 of this Act comes into force before subparagraph 115(h)(i) of the other Act, then that subparagraph 115(h)(i) is repealed.
(29) If subparagraph 115(h)(i) of the other Act comes into force on the same day as section 112 of this Act, then that subparagraph 115(h)(i) is deemed to have come into force before that section 112.
(30) If section 113 of this Act comes into force before subparagraph 115(h)(ii) of the other Act, then that subparagraph 115(h)(ii) is replaced by the following:
(ii) paragraph (a) of the definition “offshore revenue” and the definition “pe-troleum” in section 18, and
(31) If subparagraph 115(h)(ii) of the other Act comes into force on the same day as section 113 of this Act, then that subparagraph 115(h)(ii) is deemed to have come into force before that section 113.
Bill C-15
118. (1) Subsections (2) to (10) apply if Bill C-15, introduced in the 2nd session of the 41st Parliament and entitled the Northwest Territories Devolution Act (in this section referred to as “the other Act”), receives royal assent.
(2) On the first day on which both section 21 of the other Act and subsection 17(1) of this Act are in force, the portion of subsection 25.1(1) of the Canada Oil and Gas Operations Act before paragraph (a) is replaced by the following:
Spill-treating agents
25.1 (1) In the case of a spill in the zones referred to in paragraph 3(d) or the waters superjacent to the continental shelf of Canada, the provisions referred to in Schedule 1 do not apply to the deposit of a spill-treating agent and those referred to in Schedule 2 do not apply in respect of any harm that is caused by the spill-treating agent or by the interaction between the spill-treating agent and the spilled oil, if
(3) On the first day on which both section 21 of the other Act and subsection 25.4(1) of the Canada Oil and Gas Operations Act, as enacted by section 18 of this Act, are in force, subsection 25.4(1) is replaced by the following:
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 zones referred to in paragraph 3(d) or the waters superjacent to the continental shelf of Canada.
(4) On the first day on which both section 21 of the other Act and subsection 19(2) of this Act are in force, paragraphs 26(2.2)(b) and (c) of the Canada Oil and Gas Operations Act are replaced by the following:
(b) in respect of any area referred to in paragraphs 3(a) and (b) that is covered by or located at a distance of 200 metres or less from any river, stream, lake or other body of inland water and to which paragraph (a) of this subsection does not apply, the amount of $25 million;
(c) in respect of any area referred to in paragraphs 3(a) and (b) and to which neither paragraph (a) nor (b) of this subsection applies, the amount of $10 million; and
(5) On the first day on which both section 21 of the other Act and subsection 21(1) of this Act are in force, paragraph 27(1)(a) of the Canada Oil and Gas Operations Act is replaced by the following:
(a) in the case of the drilling for or development or production of oil or gas in any area referred to in paragraphs 3(d) and (e), in the amount of $100 million or, if the Board considers it necessary, in a greater amount that it determines; or
(6) On the first day on which section 24 of the other Act and subsection 23(1) of this Act are in force, the definition “unitization order” in section 29 of the Canada Oil and Gas Operations Act is replaced by the following:
“unitization order”
« arrêté d’union »
« arrêté d’union »
“unitization order” means an order made under section 41, 48.092 or 48.23;
(7) On the first day on which section 21 of the other Act and subsection 23(2) of this Act are in force, paragraphs (a) and (b) of the definition “perimeter” in section 29 of the Canada Oil and Gas Operations Act are replaced by the following:
(a) the area in the offshore, as defined in section 48.01, that is within 20 km of the onshore;
(b) the area in Nunavut that is within 20 km of the limit of that territory; and
(c) the portion of the submarine area — consisting of the areas referred to in paragraphs 3(d) and (e) — that is within 10 nautical miles of the seaward limit of that area;
(8) If section 36 of the other Act comes into force before subsection 34(4) of this Act, then that subsection 34(4) is repealed.
(9) If subsection 34(4) of this Act comes into force before section 36 of the other Act, then that section 36 is repealed.
(10) If section 36 of the other Act comes into force on the same day as subsection 34(4) of this Act, then that section 36 is deemed to have come into force before that subsection 34(4) and subsection (8) applies as a consequence.
Coming into Force
Order or 12 months after royal assent
119. (1) Subject to subsection (2), the provisions of this Part, other than sections 117 and 118, come into force 12 months after the day on which this Act receives royal assent or on any earlier day or days that may be fixed by order of the Governor in Council.
Order or 5 years after royal assent
(2) Subsections 8(2), 17(2) to (4), 52(2), 58(2) to (4), 88(2) and 94(2) to (4) come into force five years after the day on which this Act receives royal assent or on any earlier day or days that may be fixed by order of the Governor in Council.
PART 2
NUCLEAR LIABILITY AND COMPENSATION ACT
Enactment of Act
Enactment
120. The Nuclear Liability and Compensation Act, whose text is as follows and whose schedule is set out in Schedule 4 to this Act, is enacted:
An Act respecting civil liability and compensa-tion for damage in case of a nuclear incident, repealing the Nuclear Liability Act and making consequential amend-ments to other Acts
SHORT TITLE
Short title
1. This Act may be cited as the Nuclear Liability and Compensation Act.
INTERPRETATION
Definitions
2. The following definitions apply in this Act.
“approved insurer”
« assureur agréé »
« assureur agréé »
“approved insurer” means an insurer or association of insurers that is designated under section 29 as an approved insurer.
“Contracting State”
« État contractant »
« État contractant »
“Contracting State” means a State that has ratified, accepted or approved the Convention in accordance with its Article XVIII or that has acceded to it in accordance with its Article XIX.
“Convention”
« Convention »
« Convention »
“Convention” means the Convention on Supplementary Compensation for Nuclear Damage, done at Vienna on September 12, 1997 and signed by Canada on December 3, 2013, as amended from time to time.
“Installation State”
« État où se trouve l’installation »
« État où se trouve l’installation »
“Installation State” means a Contracting State within whose territory is situated a nuclear installation as defined in Article 1.I(b) of the Annex to the Convention or, if the nuclear installation is not within the territory of a Contracting State, the Contracting State by which or under whose authority the nuclear installation is operated.
“nuclear fuel”
« combustible nucléaire »
« combustible nucléaire »
“nuclear fuel” means material that is capable of a self-sustaining nuclear fission chain reaction.
“nuclear incident”
« accident nucléaire »
« accident nucléaire »
“nuclear incident” means an occurrence or a series of occurrences having the same origin that causes damage for which an operator is liable under this Act.
“nuclear installation”
« établissement nucléaire »
« établissement nucléaire »
“nuclear installation” means, other than in the definition “Installation State” and subparagraphs 9(1)(b.1)(i) and (b.2)(i) and 9(4)(b)(i) and (c)(i) of the English version, any site or means of transport that is designated under section 7 as a nuclear installation.
“nuclear material”
« matière nucléaire »
« matière nucléaire »
“nuclear material” means
(a) nuclear fuel, other than natural uranium or depleted uranium, that can produce energy by a self-sustaining nuclear fission chain reaction outside a nuclear reactor, either alone or in combination with another material; and
(b) radioactive products or waste, other than radioisotopes that have reached the final stage of fabrication so as to be usable for any scientific, medical, agricultural, commercial or industrial purpose.
“nuclear reactor”
« réacteur nucléaire »
« réacteur nucléaire »
“nuclear reactor” means a structure containing nuclear fuel arranged such that a self-sustaining nuclear fission chain reaction can occur in the structure without an additional source of neutrons.
“operator”
« exploitant »
« exploitant »
“operator” means a person who is designated by a regulation made under section 7 as an operator.
“public funds”
« fonds publics »
« fonds publics »
“public funds” means an amount that Contracting States must contribute when a call for funds is made under Article VII.1 of the Convention.
“radioactive products or waste”
« produit ou déchet radioactif »
« produit ou déchet radioactif »
“radioactive products or waste” means
(a) radioactive material that is produced in the production or use of nuclear fuel other than natural uranium or depleted uranium; or
(b) material that is made radioactive by exposure to radiation consequential on or incidental to the production or use of nuclear fuel other than natural uranium or depleted uranium.
“Tribunal”
« Tribunal »
« Tribunal »
“Tribunal” means a nuclear claims tribunal established under subsection 41(1).
PURPOSE OF ACT
Civil liability and compensation
3. The purpose of this Act is to govern civil liability and compensation for damage in case of a nuclear incident.
DESIGNATION OF MINISTER
Minister
4. The Governor in Council may, by order, designate a minister of the Crown to be the Minister referred to in this Act.
NON-APPLICATION
Non-application — war, etc.
5. (1) This Act does not apply to a nuclear incident that results from an act of war, hostilities, civil war or insurrection, other than a terrorist activity as defined in subsection 83.01(1) of the Criminal Code.
Non-application — damage to nuclear installation
(2) This Act does not apply to damage to the nuclear installation of an operator who is responsible for that damage or to any property at the installation that is used in connection with the installation, including property under construction.
HER MAJESTY
Binding on Her Majesty
6. This Act is binding on Her Majesty in right of Canada or a province.
DESIGNATION OF NUCLEAR INSTALLATIONS AND OPERATORS
Designation of nuclear installations
7. (1) The Governor in Council may, on the Minister’s recommendation and after con- sultation with the Canadian Nuclear Safety Commission, designate by regulation any site at which is located a facility or facilities that are authorized by a licence issued under the Nuclear Safety and Control Act and that contain nuclear material as a nuclear installation.
Description of site and designation of operator
(2) The regulation must describe the site, list the facilities on it that are authorized to contain nuclear material and designate the holder of a licence described in subsection (1) as the operator of the nuclear installation.
Coming into force
(3) The regulation may be made before a licence has been issued, but it must not come into force before the day on which the licence is issued.
Designation of means of transport
(4) The Governor in Council may, on the Minister’s recommendation and after consultation with the Canadian Nuclear Safety Commission, designate by regulation any means of transport that is equipped with a nuclear reactor as a nuclear installation and designate by regulation the holder of a licence issued under the Nuclear Safety and Control Act respecting that means of transport as the operator of the nuclear installation.
LIABILITY FOR NUCLEAR INCIDENTS
Operator’s Liability
Limitation
8. An operator is not liable for damage that is caused by a nuclear incident except for any liability that is provided for under this Act.
Liability — Canada
9. (1) An operator — and no person other than an operator — is liable for damage that is caused within Canada or its exclusive economic zone by
(a) ionizing radiation emitted from any source of radiation within, or released from, the operator’s nuclear installation;
(b) ionizing radiation emitted from nuclear material being transported
(i) from the operator’s nuclear installation until it is placed in another nuclear installation or until liability is assumed by the operator of that other nuclear installation, under the terms of a written contract,
(ii) to the operator’s nuclear installation from outside Canada,
(iii) from the operator’s nuclear installation to a person who is within the territory of a State that is not a Contracting State until it is unloaded from the means of transport by which it arrived in that State, or
(iv) with the operator’s written consent, from a person who is within the territory of a State that is not a Contracting State to the operator’s installation, from the time that it is loaded on the means of transport by which it is to be carried from that State;
(b.1) ionizing radiation emitted from nuclear material being transported from the operator’s nuclear installation
(i) before liability is assumed under the terms of a written contract, by a person who is within the territory of a Contracting State other than Canada and who is designated or recognized under the laws of that State as operating a nuclear installation as defined in Article 1.I(b) of the Annex to the Convention, or
(ii) in the absence of a contract, before that person takes charge of the nuclear material;
(b.2) ionizing radiation emitted from nuclear material being transported to the operator’s nuclear installation
(i) after liability is assumed by the operator under the terms of a written contract, from a person who is within the territory of a Contracting State other than Canada and who is designated or recognized under the laws of that State as operating a nuclear installation as defined in Article 1.I(b) of the Annex to the Convention, or
(ii) in the absence of a contract, after the operator takes charge of the nuclear material; or
(c) a combination of the radioactive properties and toxic, explosive or other hazardous properties of a source referred to in paragraph (a) or nuclear material referred to in paragraph (b), (b.1) or (b.2).
Preventive measure — liability in Canada
(2) An operator — and no person other than an operator — is liable for damage that is caused within Canada or its exclusive economic zone if the damage is caused by a preventive measure that is taken under subsection 20(1) in relation to that operator’s nuclear installation or in relation to any transportation for which the operator is responsible.
Liability — damage in reciprocating country
(3) If provided for in regulations made under subsection 70(2) to implement an agreement between Canada and a reciprocating country, an operator — and no person other than an operator — is liable for damage that occurs in the reciprocating country or its exclusive economic zone and that results from the production, processing, transport, storage, use or disposition of the nuclear material for which the operator is responsible.
Additional liability — Contracting State other than Canada
(4) An operator — and no person other than an operator — is liable for damage that is caused within a Contracting State other than Canada or within that State’s exclusive economic zone by
(a) ionizing radiation emitted from any source of radiation within, or released from, the operator’s nuclear installation;
(b) ionizing radiation emitted from nuclear material being transported from the operator’s nuclear installation
(i) before liability is assumed, under the terms of a written contract, by a person who is within the territory of the Contracting State other than Canada and who is designated or recognized under the laws of that State as operating a nuclear installation as defined in Article 1.I(b) of the Annex to the Convention, or
(ii) in the absence of a contract, before that person takes charge of the nuclear material;
(c) ionizing radiation emitted from nuclear material being transported to the operator’s nuclear installation
(i) after liability is assumed by the operator, under the terms of a written contract, from a person who is within the territory of the Contracting State other than Canada and who is designated or recognized under the laws of that State as operating a nuclear installation as defined in Article 1.I(b) of the Annex to the Convention, or
(ii) in the absence of a contract, after the operator takes charge of the nuclear material; or
(d) a combination of the radioactive properties and toxic, explosive or other hazardous properties of a source referred to in paragraph (a) or nuclear material referred to in paragraph (b) or (c).
Preventive measure — liability in Contracting State other than Canada
(5) An operator — and no person other than an operator — is liable for any damage that is caused within a Contracting State other than Canada or within that State’s exclusive economic zone if the damage is caused by a preventive measure that is taken under subsection 21(1) in relation to that operator’s nuclear installation or in relation to any transportation for which the operator is responsible.
Additional liability — transportation to or from non-contracting State
(6) An operator — and no person other than an operator — is liable for damage that is caused within a Contracting State other than Canada or within that State’s exclusive economic zone by
(a) ionizing radiation emitted from nuclear material being transported
(i) from the operator’s nuclear installation to a person who is within the territory of a State that is not a Contracting State until it is unloaded from the means of transport by which it arrived in that State; or
(ii) with the operator’s written consent, from a person who is within the territory of a State that is not a Contracting State to the operator’s nuclear installation, from the time it is loaded on the means of transport by which it is to be carried from that State; or
(b) a combination of the radioactive properties and toxic, explosive or other hazardous properties of nuclear material referred to in paragraph (a).
Absolute liability
10. (1) The liability of an operator for damage that is caused by a nuclear incident is absolute.
Tort or fault
(2) For the purposes of subsection (1), no proof of tort or of fault within the meaning of the Civil Code of Québec is required.
Liability — jointly and severally, or solidarily
11. If liability under this Act is incurred by two or more operators, each is jointly and severally, or solidarily, liable to the extent that it cannot reasonably be determined what portion of the liability is attributable to each operator.
Person responsible for nuclear incident
12. An operator is not liable for damage that is suffered by a person if that person intentionally caused the nuclear incident wholly or partly by an act or omission or under circumstances amounting to gross negligence or, in Quebec, gross fault.
No recourse
13. In respect of damage that is caused by a nuclear incident, an operator has no right of recourse against any person other than an individual who intentionally caused the nuclear incident by an act or omission.
Compensable Damage
Bodily injury or damage to property
14. Bodily injury or death and damage to property that are caused by a nuclear incident are compensable.
Psychological trauma
15. Psychological trauma that is suffered by a person is compensable if it results from bodily injury to that person that was caused by a nuclear incident.
Liability for economic loss
16. Economic loss that is incurred by a person as a result of their bodily injury or damage to their property and that is caused by a nuclear incident, or psychological trauma that results from that bodily injury, is compensable.
Costs and wages
17. (1) The costs that are incurred by a person who loses the use of property as a result of a nuclear incident and the resulting wage loss by that person’s employees are compensable.
Power failure
(2) If a nuclear incident occurs at a nuclear installation that generates electricity, the costs resulting from a failure of the installation to provide electricity are not compensable under subsection (1).
Environmental damage — Canada
18. Reasonable costs of remedial measures that are taken to repair, reduce or mitigate environmental damage that is caused by a nuclear incident are compensable if the meas-ures are ordered by an authority acting under federal or provincial legislation relating to environmental protection.
Environmental damage — Contracting State other than Canada
19. Unless the damage is insignificant, reasonable costs of remedial measures that are taken to repair, reduce or mitigate environmental damage that is caused by a nuclear incident are compensable if the measures are ordered by an authority of a Contracting State other than Canada acting under the laws of that State relating to environmental protection.
Preventive measures — Canada
20. (1) If an authority — acting under a nuclear emergency scheme established under federal or provincial legislation — has recommended that measures be taken in a specified area to prevent damage, the following costs and losses of persons who live in, carry on business in, work in or are present in the area are compensable:
(a) the reasonable costs of the measures; and
(b) the costs and economic loss — including lost wages — arising from the loss of use of property.
Non-application
(2) For greater certainty, any federal, provincial or municipal authority, or any of its agencies, that establishes or implements a nuclear emergency scheme is not to be compensated under subsection (1).
Preventive measures — Contracting State other than Canada
21. (1) If an authority — acting under an emergency scheme established under the laws of a Contracting State other than Canada — has recommended that, because of grave and imminent danger of damage, measures be taken in a specified area to prevent such damage, the following costs and losses of persons who live in, carry on business in, work in or are present in the area are compensable:
(a) the reasonable costs of the measures; and
(b) the costs and economic loss — including lost wages — arising from the loss of use of property.
Non-application
(2) For greater certainty, any authority, or any of its agencies, that establishes or implements a nuclear emergency scheme is not to be compensated under subsection (1).
Damage attributable to concomitant nuclear incidents
22. Any damage resulting from a nuclear incident and any concomitant non-nuclear incident is deemed to be damage that is caused by the nuclear incident to the extent that it cannot be identified as having been caused only by the non-nuclear incident.
Damage to means of transport, structure or site
23. If a nuclear incident occurs during the transportation of nuclear material to or from a nuclear installation, or any storage incidental to the transportation, damage to the means of transport or the structure or site where the nuclear material is stored is not compensable under this Act.
Financial Provisions
Limit of operator’s liability
24. (1) The liability of an operator under this Act for damage resulting from a nuclear incident is limited to
(a) $650 million for a nuclear incident arising within one year after the day on which this paragraph comes into force;
(b) $750 million for a nuclear incident arising within one year after the year referred to in paragraph (a);
(c) $850 million for a nuclear incident arising within one year after the year referred to in paragraph (b); and
(d) $1 billion for a nuclear incident arising after the year referred to in paragraph (c).
Amendment to amount of liability
(2) The Governor in Council may, by regulation,
(a) amend subsection (1) to increase any amount of liability; or
(b) reduce the amount of liability applicable to an operator of a nuclear installation, or operators of a class of nuclear installations, having regard to the nature of the installation and the nuclear material contained in it.
Clarification
(3) Subsection (1) does not relieve an operator from payment of the costs of administering claims, court costs or interest on compensation.
Liability — transportation
25. If a nuclear incident occurs during the transportation of nuclear material or storage incidental to the transportation and more than one operator is liable for the damage that is caused by that nuclear incident, the total liability of those operators is limited to the amount referred to in subsection 24(1) in relation to one operator.
Review by Minister
26. (1) The Minister must review the limit of liability, referred to in subsection 24(1), on a regular basis and at least once every five years.
Criteria
(2) In carrying out the review, the Minister must have regard to
(a) changes in the Consumer Price Index, as published by Statistics Canada under the authority of the Statistics Act;
(b) financial security requirements under international agreements respecting nuclear liability; and
(c) any other considerations that the Minister considers relevant.
Operator’s obligation
27. (1) An operator, other than a department listed in Schedule I to the Financial Administration Act, must maintain, for each of the operator’s nuclear installations, financial secu-rity to compensate persons who suffer damage that is caused by a nuclear incident in an amount that is equal to the amount referred to in subsection 24(1) or, if the operator is subject to a regulation made under paragraph 24(2)(b), the amount set out in that regulation.
Foreign operator’s obligation — transporting nuclear material within Canada
(2) The Minister may require an operator, as defined in Article 1.I(d) of the Annex to the Convention but who is not an operator as defined in section 2 of this Act, and who is transporting nuclear material within Canada to maintain financial security in an amount prescribed by regulation but not more than the amount referred to in subsection 24(1) to compensate persons who suffer damage that is caused by a nuclear incident.
Non-application
(3) Subsection (2) does not apply
(a) to transport by sea if, under international law, there is a right of entry into a Canadian port in a case of distress, or if there is a right of innocent passage through Canadian territory; and
(b) to transport by air if, under an agreement to which Canada is a party or under international law, there is a right to fly over or land on Canadian territory.
Use of financial security
(4) The financial security is not to be used by an operator referred to in subsection (1) to pay their costs of administering claims, court costs, legal fees or interest on compensation.
Insurance
28. (1) The financial security is to be in the form of insurance with an approved insurer, containing only the terms and conditions set out in a standard insurance policy that is approved by the Minister.
Alternate financial security
(2) The Minister may enter into an agreement with the operator that authorizes that a portion of the financial security be an alternate financial security.
Maximum amount of financial security
(3) The amount of the alternate financial security must not, unless another percentage has been fixed by regulation, exceed 50% of the operator’s liability that is applicable under section 24.
Terms of agreement
(4) The agreement must identify the financial instrument being used as the alternate financial security, specify its dollar value and set out any conditions that the Minister considers appropriate, including a requirement that the operator submit reports or allow the Minister to undertake financial audits in respect of the security or that the operator pay a fee for the authorization of the security or for the audits.
Amendment or revocation
(5) The Minister may amend the conditions of an agreement or revoke an agreement.
Approved insurer
29. The Minister may, subject to any terms and conditions that he or she may impose, designate as an approved insurer any insurer or association of insurers that, in his or her opinion, is qualified to fulfill the obligations of an approved insurer under this Act.
Suspension or cancellation
30. An approved insurer or any provider of an alternate financial security referred to in subsection 28(2) may suspend or cancel an operator’s insurance or alternate financial security only if written notice is given to the Minister at least two months before the suspension or cancellation, but, if the insurance or security relates to the transportation of nuclear material, the cancellation or suspension is not to take effect during the period of transportation to which it relates.
Indemnity agreements — general rule
31. (1) The Minister may enter into an indemnity agreement with an operator under which Her Majesty in right of Canada covers any risks that, in the Minister’s opinion, would not be assumed by an approved insurer.
Indemnity agreements — operator subject to regulation made under paragraph 24(2)(b)
(2) If the nuclear damage is caused by an operator who is subject to a regulation made under paragraph 24(2)(b) and that damage exceeds that operator’s liability under that regulation, the indemnity agreement may also provide that Her Majesty in right of Canada must cover that operator for the difference between the operator’s liability under the regulation and the liability of any other operator under subsection 24(1). Despite the indemnity agreement, the operator remains liable for the damage.
Fees
(3) Any indemnity agreement may provide for the payment of fees to Her Majesty in right of Canada.
Tabling of agreements
(4) The Minister must cause a copy of each indemnity agreement that is entered into under this section to be laid before each House of Parliament on any of the first 30 days on which that House is sitting after the agreement is entered into.
Nuclear Liability Account
32. (1) The Nuclear Liability Reinsurance Account, established in the accounts of Canada under the Nuclear Liability Act, is continued as the Nuclear Liability Account to which are to be
(a) credited all amounts received by Her Majesty in right of Canada as fees under an indemnity agreement; and
(b) charged all amounts that are payable by Her Majesty in right of Canada under an indemnity agreement.
Advances to account out of C.R.F.
(2) If the amount standing to the credit of the Nuclear Liability Account is insufficient for the payment of the amounts that are required under the terms of an indemnity agreement, an amount that is sufficient to meet the deficit is, with the Minister of Finance’s approval, to be paid from the Consolidated Revenue Fund and credited to the Nuclear Liability Account.
Preservation of Certain Rights and Obligations
Certain rights and obligations not limited
33. Nothing in this Act is to be construed as limiting any right or obligation arising under
(a) any contract of insurance;
(b) any scheme or system of health insurance, employees’ compensation or occupational disease compensation; and
(c) any survivor or disability provision of a pension plan.
Judicial Proceedings
Where action is to be brought
34. (1) An action involving damage that is caused by a nuclear incident is to be brought in the court in Canada that has jurisdiction in the place where the incident occurs.
Federal Court jurisdiction
(2) The Federal Court has jurisdiction if the nuclear incident occurs
(a) in more than one province;
(b) partly within a province and partly within Canada’s exclusive economic zone; or
(c) within Canada’s exclusive economic zone.
Additional jurisdiction of Federal Court
(3) If the nuclear incident occurs outside the territory or the exclusive economic zone of any Contracting State, or the place where the nuclear incident occurred cannot be determined with certainty, the Federal Court has jurisdiction if the nuclear incident is caused by an operator.
Concurrent jurisdiction
(4) If a court of a Contracting State other than Canada has concurrent jurisdiction for a claim or action for damage under this Act, Canada and the other Contracting State must determine, by agreement, which court is to have exclusive jurisdiction.
Recognition of foreign judgments
(5) A court of competent jurisdiction in Canada must, as soon as feasible on receipt of an application, recognize and enforce a judgment of a court of a Contracting State other than Canada that, in addition to meeting the criteria under Canadian law for being recognized in Canada, is rendered in accordance with the Convention.
Restriction on jurisdiction
(6) Except as provided in this Act, no court in Canada and no tribunal has jurisdiction to entertain any application or grant any relief or remedy relating to damage that occurs outside Canada or its exclusive economic zone.
Limitation on bringing actions and claims
35. (1) An action or claim must be brought within three years
(a) in the case of an action or claim for loss of life, after the day on which the person bringing the action or making the claim had knowledge or ought reasonably to have had knowledge of both the loss of life and the identity of the operator who is responsible for the loss of life;
(b) in the case where conclusive evidence of the loss of life is not available, after the day on which both an order presuming the person to be dead is made by a court having jurisdiction and the person bringing the action or making the claim had knowledge or ought reasonably to have had knowledge of the identity of the operator who is responsible for the presumed loss of life; and
(c) in any other case, after the day on which the person bringing the action or making the claim had knowledge or ought reasonably to have had knowledge of both the damage and the identity of the operator who is responsible for the damage.
Absolute limit
(2) No action or claim is to be brought
(a) in relation to bodily injury or death, 30 years after the day on which the nuclear incident to which the action or claim relates occurred; and
(b) in any other case, 10 years after the day on which the nuclear incident to which the action or claim relates occurred.
Exception
(3) Despite subsection (2), if the damage is the result of a nuclear incident involving nuclear material that was, at the time of the nuclear incident, lost, stolen, jettisoned or abandoned, no action or claim is to be brought 20 years after the day on which the loss, theft, jettison or abandonment occurred.
Extension of period
(4) The Governor in Council may, by regulation, extend the period set out in subsection (1).
NUCLEAR CLAIMS TRIBUNAL
Governor in Council’s Declaration
Declaration
36. (1) The Governor in Council may declare that claims in respect of a nuclear incident are to be dealt with by a Tribunal, if he or she believes that it is in the public interest to do so, having regard to the extent and the estimated cost of the damage, and the advantages of having the claims dealt with by an administrative tribunal.
Publication
(2) The declaration is not a statutory instrument for the purposes of the Statutory Instruments Act, but it must be published, without delay, in the Canada Gazette, Part II.
Effect of declaration
37. (1) Section 34 ceases to apply in respect of a nuclear incident on the day on which a declaration is made under subsection 36(1), and any proceedings brought or taken before the declaration is made are discontinued.
New jurisdiction
(2) Any claims that could have been made before the declaration is made are, after the day on which it is made, only to be brought before the Tribunal.
Report to Parliament
Report on nuclear incident
38. The Minister must, without delay, after a declaration is made under subsection 36(1), cause a report estimating the cost of the indemnification for the damage arising from a nuclear incident to be laid before each House of Parliament.
Interim Financial Assistance
Interim financial assistance
39. (1) During the period that begins when a declaration is made under subsection 36(1) and ends when the notice is published under subsection 42(2), the Minister may pay interim financial assistance to persons who, in the Minister’s opinion, have suffered damage as a result of the nuclear incident to which the declaration relates. The Minister must inform the Tribunal of the names of those persons and the amounts paid.
Maximum amount
(2) The maximum amount that is to be paid under subsection (1) must not exceed 20% of the difference between
(a) the amount set out in subsection 24(1), and
(b) the total amounts that are paid by the operator, before the declaration is made under subsection 36(1), to compensate persons for damage arising from the nuclear incident.
Power to make agreements
40. The Minister may enter into an agreement with any person, association of insurers or province for the carrying out of the Minister’s duties or functions by that person, association of insurers or province in relation to the payment of interim financial assistance.
Establishment of a Nuclear Claims Tribunal
Tribunal’s establishment
41. (1) The Governor in Council must, as soon as feasible after a declaration is made under subsection 36(1), establish a nuclear claims Tribunal and designate the location of its head office in Canada.
Purpose
(2) The Tribunal’s purpose is to examine and adjudicate claims for damage arising from the nuclear incident as expeditiously as the circumstances and considerations of fairness permit.
Claims treated equitably
(3) The Tribunal must carry out its duties and functions with respect to claims for damage in an equitable manner, without discrimination on the basis of nationality or residence.
Public notice
42. (1) The Tribunal must notify the public, in a manner that it considers appropriate, of the details of its purpose and how to obtain information on bringing a claim.
Publication
(2) A notice of the Tribunal’s purpose and how to obtain information on bringing a claim must also be published, without delay, in the Canada Gazette.
Members of Tribunal
43. (1) The Governor in Council must appoint a minimum of five persons to the Tribunal, one of whom is to be designated as the chairperson.
Members’ qualifications
(2) A majority of the members of the Tribunal are to be appointed from among persons who are sitting or retired judges of a superior court or members of at least 10 years’ standing at the bar of a province or the Chambre des notaires du Québec.
Remuneration
(3) The members are to be paid the remuneration and expenses fixed by the Governor in Council.
Term of office
44. Each member of the Tribunal is to be appointed to hold office during good behaviour for a term that the Governor in Council considers appropriate and may be removed for cause.
Immunity
45. No civil proceedings lie against any member of the Tribunal for anything done or omitted to be done by the member in good faith in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the Tribunal.
Tribunal’s staff
46. The Tribunal may employ the staff that it considers necessary for the proper conduct of its duties or functions, prescribe their duties and, subject to any regulations, their terms and conditions of employment and, with the approval of the Treasury Board, fix and pay their remuneration.
Technical or specialized knowledge
47. The Tribunal may engage, on a tempo-rary basis, the services of counsel and other persons having technical or specialized knowledge to assist the Tribunal in its work, establish the terms and conditions of their employment and, with the approval of the Treasury Board, fix and pay their remuneration and expenses.
Inconsistency
48. In the event of an inconsistency between a provision of the Judges Act and any provision of this Act that is applicable to a sitting or retired judge, the Judges Act prevails to the extent of the inconsistency.
Tribunal’s Powers and Duties
Hearings
49. The Tribunal is to hold its hearings in Canada at the times and locations that it considers appropriate.
Intervenor
50. The Attorney General of Canada and the competent authority of any other Contracting State may intervene in proceedings that are before the Tribunal.
Powers — witnesses and documents
51. (1) The Tribunal has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters that are necessary or proper for the due exercise of its jurisdiction, all of the powers, rights and privileges that are vested in a superior court.
Evidence at hearings
(2) The Tribunal is not, in the hearing of any claim, bound by the legal rules of evidence, but it must not receive as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.
Foreign evidence
(3) The Tribunal may issue commissions to take evidence outside Canada and may make orders for that purpose and for the return and use of the evidence so obtained.
Examinations
52. The Tribunal may require persons claiming compensation to undergo medical or other examinations that are, in the Tribunal’s opinion, reasonably necessary to enable it to determine their claims.
Frivolous or vexatious claims
53. The Tribunal may refuse to hear any claim referred to it that it considers to be frivolous or vexatious.
Report on Tribunal’s activities
54. The Tribunal must, at the Minister’s request, submit to him or her a report on its activities. The Minister must cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after he or she receives it.
Rules
55. The Tribunal may make any rules that it considers necessary for the exercise of its powers and the performance of its duties and functions, including rules respecting
(a) procedures for bringing claims;
(b) the form and manner in which evidence is to be submitted;
(c) a quorum;
(d) procedures that claims officers are to follow in dealing with claims;
(e) fees and travel expenses that are to be paid to witnesses;
(f) the allowance of costs; and
(g) appeals and rehearings.
Claims
Panels
56. (1) The chairperson may establish panels of the Tribunal consisting of one or more members to hear claims.
Claims officer
(2) The Tribunal may, in order to process claims expeditiously, establish classes of claims that may be determined by the claims officer without an oral hearing and designate as a claims officer anyone that it considers qualified.
Powers and duties
(3) A panel or claims officer must exercise the powers and perform the duties and functions of the Tribunal with respect to claims that are before that panel or claims officer.
Notice
57. The chairperson must assign a claim to a panel or claims officer and notify the claimant, the operator and the Minister of the assignment.
Public hearings
58. Panel hearings are to be held in public. However, a panel may hold all or part of a hearing in private if, in its opinion, a person’s privacy interest outweighs the principle that hearings be open to the public.
Interim award of compensation
59. (1) The Tribunal may award interim compensation in respect of a claim that is heard by it before it makes a decision with respect to the claim.
Payment
(2) The Tribunal must inform the Minister of the amount of the interim compensation awarded, and the Minister must pay that amount to the claimant.
Notice — decision
60. (1) The Tribunal must notify the claim-ant and the operator of its decision with respect to the claim.
Awards of compensation
(2) If the Tribunal decides to award compensation in respect of a claim, the notification must also be sent to the Minister and must indicate
(a) the amount of the award;
(b) any reduction in that amount applicable under the regulations; and
(c) any amounts that have already been paid with respect to the claim in accordance with this Act.
Costs and interest
(3) The amount of the award must not include any costs awarded to the claimant in any proceeding that is before the Tribunal or any interest payable on that award.
Rehearing and Appeal
Rehearing of claims officer’s decision
61. A claimant or operator who is dissatisfied with a claims officer’s decision may, within 30 days after receiving notification of the decision, apply to the Tribunal for a rehearing by a panel.
Appeal
62. (1) If a claim has been heard by a panel that consists of fewer than three members, the claimant or operator may, within 30 days after receiving notification of the decision, apply in writing to the chairperson for leave to appeal.
Hearing of appeal
(2) The appeal is to be heard and decided by a panel consisting of three other members.
Decision
(3) The appeal is to be heard on the basis of the record of the panel whose decision is appealed and on the submissions of interested parties. The panel hearing the appeal may, in exceptional circumstances, if, in its opinion, it is essential in the interests of justice to do so, admit additional evidence or testimony.
Judicial review
63. Subject to sections 61 and 62, every decision of the Tribunal is final and conclusive and is not to be questioned or reviewed in any court except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
Financial Provisions
Payment of awards
64. At the end of the period to apply for a rehearing or make an appeal, the Minister must pay to the claimant the amount of the award less the total of the amounts referred to in paragraphs 60(2)(b) and (c).
Recovery of overpayment
65. Any overpayment is a debt that is due to Her Majesty in right of Canada and may be recovered in accordance with section 155 of the Financial Administration Act.
Payments out of Nuclear Liability Account
66. (1) All payments made by the Minister are to be paid out of the Nuclear Liability Account.
Advances to account out of C.R.F.
(2) If the amount standing to the credit of the Nuclear Liability Account is insufficient for the payment of the amounts that are required, an amount that is sufficient to meet the deficit is, with the Minister of Finance’s approval, to be paid from the Consolidated Revenue Fund and credited to the Nuclear Liability Account.
Operator’s liability to Her Majesty
67. (1) When a declaration is made under subsection 36(1), the operator who is liable for the damage that is caused by a nuclear incident must pay to Her Majesty in right of Canada an amount that is equal to the lesser of
(a) the amount set out in subsection 24(1) — or, if the operator is subject to a regulation made under paragraph 24(2)(b), the amount set out in that regulation — less the total amounts that were paid by the operator to compensate persons for damage arising from the nuclear incident before the declaration under subsection 36(1) is made, and
(b) the total of all amounts that are paid by the Minister under section 64.
Failure to pay
(2) If the operator fails to pay any amount that is due, it must be paid to Her Majesty in right of Canada by
(a) the approved insurer, for the financial security that is in the form of insurance; or
(b) the issuer of the financial instrument, for alternate financial security.
Amount paid by operator, approved insurer or issuer of security
(3) The operator, the approved insurer or the issuer of the financial instrument, as the case may be, must pay to Her Majesty in right of Canada, at the Minister’s request, any amount that is specified in the request.
Limitation
(4) The total amount that is requested by the Minister under subsection (3) in respect of any year must not be more than the total amount that is paid by the Minister under section 39, subsection 59(2) and section 64.
Debt due to Crown
(5) An amount that is not paid as required under subsection (3) is a debt that is due to Her Majesty in right of Canada and may be recovered in accordance with section 155 of the Financial Administration Act.
Nuclear Liability Account
(6) Any amount received by Her Majesty in right of Canada under this section is to be credited to the Nuclear Liability Account.
Limit of payments
68. (1) The Tribunal must not award, in respect of a nuclear incident, an amount that is more than the amount set out in subsection 24(1) less the total of all amounts that are paid by the operator to compensate persons for damage arising from the nuclear incident before the declaration is made under subsection 36(1).
Additional funds — public funds
(2) Despite subsection (1), if the Minister makes a call for public funds under subsection 72(1), the Tribunal may award an additional amount of funds that are equal to the amount of public funds that are paid by Contracting States.
Further funds — Parliament
(3) If further funds are appropriated by Parliament to provide compensation for damage arising from the nuclear incident, the Tribunal may award those further funds for the damage.
Changes to reductions
69. (1) If a regulation made under paragraph 80(b) is amended, the Tribunal must inform the Minister of any change to applicable reductions that is to the advantage of any claimant who was not fully compensated because of the previous regulation.
Payment
(2) The Minister must pay to the claimant the difference between the amount that has already been paid and the amount that would be paid under the amended regulation.
Consideration of new claims
(3) If a regulation made under paragraph 80(c) is amended, the Tribunal may consider any new claim for which compensation could not be awarded because of the previous regulation.
RECIPROCATING AGREEMENTS
Reciprocating countries
70. (1) If in the Governor in Council’s opinion satisfactory arrangements exist in any country for compensation in that country and in Canada for damage resulting from the production, processing, transport, storage, use or disposition of nuclear material, he or she may declare that country to be a reciprocating country for the purposes of this Act.
Regulations
(2) The Governor in Council may, with respect to a reciprocating country, make any regulations that he or she considers necessary to implement any agreement between Canada and the reciprocating country relating to damage resulting from the production, processing, transport, storage, use or disposition of nuclear material.
OTHER INTERNATIONAL OBLIGATIONS
Additional liability — call for public funds
71. (1) When a call for public funds is made under subsection 72(1), those funds are to be used to compensate the damage that is suffered, if it
(a) occurs in the territory of a Contracting State;
(b) occurs in or above the exclusive economic zone of a Contracting State or on the continental shelf of a Contracting State, and relates to the exploitation or exploration of the natural resources of that exclusive economic zone or continental shelf; or
(c) occurs in or above the maritime areas beyond the territorial sea of a Contracting State — on board or by a ship flying the flag of a Contracting State, on board or by an aircraft registered in a Contracting State, on or by an artificial island, on or by an installation or a structure under a Contracting State’s jurisdiction or by a national of a Contracting State.
Exception
(2) The public funds are not to be used to compensate the damage that is referred to in paragraph (1)(c) if the damage that is suffered occurs in the territorial sea of a non-Contracting State.
Preventive measure — liability
(3) The public funds may also be used to compensate the damage that is caused in one of the areas referred to in paragraph (1)(a) or (b) by a preventive measure that was taken under subsection 20(1) or 21(1) in relation to the operator’s nuclear installation or in relation to any transportation for which the operator is responsible.
Meaning of “national of a Contracting State”
(4) In subsection (1), a “national of a Contracting State” includes any subdivision of the Contracting State and any entity that is established or incorporated in that State.
Financial contribution — call for public funds by Canada
72. (1) If in the Minister’s opinion a nuclear incident for which the Tribunal or any other Canadian court has jurisdiction will result, or is likely to result, in compensation for damage that exceeds the amount made available by Canada, under Article III.1(a) of the Convention, and public funds may be necessary to compensate the damages that are caused in one of the areas that are referred to in subsection 71(1), he or she must immediately give notice under Article VI of the Convention to all other Contracting States and, if in his or her opinion public funds are necessary to compensate the damage, he or she must make a call for public funds under Article VII.1 of the Convention.
Canada’s contribution
(2) When the Minister makes a call for public funds, he or she must calculate the amount of public funds that are to be contributed by Canada, in accordance with the formula provided for by regulation.
Advances out of C.R.F.
(3) If the amount standing to the credit of the Nuclear Liability Account is insufficient for the purposes of subsection (2), an amount that is sufficient to meet the deficit is, with the Minister of Finance’s approval, to be paid from the Consolidated Revenue Fund and credited to the Nuclear Liability Account.
Public funds credited to Nuclear Liability Account
(4) The Minister must have all public funds to be contributed by Canada and other Contracting States, as a result of a call for public funds, credited to the Nuclear Liability Account.
Payment from Nuclear Liability Account
(5) When an award is final or when a decision concerning an action for damage is final or not subject to an appeal, the public funds that are payable by the Minister to compensate the damages that are caused in one of the areas that are referred to in subsection 71(1) are to be paid out of the Nuclear Liability Account.
Canada’s financial contribution — call for public funds by other Contracting State
73. (1) When a Contracting State other than Canada makes a call for public funds under Article VII.1 of the Convention and if in the Minister’s opinion the claims for compensation cannot be satisfied out of the amount that the Installation State has made available in accordance with Article III.1(a) of the Convention, the Minister must, without delay, cause public funds to be paid by Canada to that Contracting State that are calculated in accordance with the formula provided for by regulation.
Advances out of C.R.F.
(2) If the amount standing to the credit of the Nuclear Liability Account is insufficient for the purposes of subsection (1), an amount that is sufficient to meet the deficit is, with the Minister of Finance’s approval, to be paid from the Consolidated Revenue Fund and credited to the Nuclear Liability Account.
Payment from Nuclear Liability Account
(3) Any public funds that are payable are to be paid by the Minister out of the Nuclear Liability Account.
Reimbursement
74. Members of the nuclear industry who are prescribed by regulations must reimburse the Minister, in the prescribed manner and by the prescribed proportion, for any public funds that were contributed by Canada under section 72 or 73, in accordance with the prescribed formula, within the fiscal year in which the payments are made. The amounts received by the Minister are to be credited to the Nuclear Liability Account.
Recognition of settlements — Contracting State other than Canada
75. The Minister must recognize a settlement by a Contracting State other than Canada that is made in accordance with the laws of that Contracting State and that is, in respect of the payment out of public funds, for compensation for the damage to which the Convention applies.
Subrogation — contribution by Canada
76. (1) If the public funds that were contributed by Canada under section 72 have been paid by the Minister, the Attorney General of Canada may exercise an operator’s right of recourse under section 13.
Subrogation — contribution by Contracting State other than Canada
(2) If public funds were contributed by a Contracting State other than Canada under Article VII.2 of the Convention, that Contracting State may exercise an operator’s right of recourse under section 13.
Subrogation — request of Contracting State other than Canada
(3) The Attorney General of Canada may, at the request of a Contracting State other than Canada that contributed public funds under Article VII.2 of the Convention, exercise an operator’s right of recourse under section 13 on that Contracting State’s behalf.
Denial of request — subrogation by Contracting State other than Canada
(4) If, despite the request referred to in subsection (3), the Attorney General of Canada does not exercise an operator’s right of recourse under section 13 within three months after that request, the Contracting State may exercise that right.
Distribution of public funds
(5) The Minister must, within a reasonable time, distribute any public funds recovered under subsection (3) to the Contracting States in proportion to the public funds that they contributed.
OFFENCE AND PUNISHMENT
Failure to maintain financial security
77. (1) An operator who contravenes subsection 27(1) or who does not hold financial security in the form and manner required by section 28 commits an offence and is liable on summary conviction to a fine of not more than $300,000 for each day on which the offence is committed or continued.
Due diligence
(2) No operator is to be found guilty of the offence if it is established that the operator exercised due diligence to prevent its commission.
REGULATIONS
Regulations — general
78. The Governor in Council may make regulations
(a) fixing another percentage for the purpose of subsection 28(3);
(b) prescribing classes of nuclear installations;
(c) providing for the formula that is to be used to calculate the amount referred to in subsections 72(2) and 73(1);
(d) prescribing the members of the nuclear industry who are required to reimburse the Minister under section 74, and respecting the manner of calculating the amount of those payments and the manner in which those payments are to be made;
(e) prescribing any matter or thing that under this Act is to be or may be prescribed; and
(f) generally, for carrying out the purposes and provisions of this Act.
Regulations — Tribunal
79. The Governor in Council may make regulations respecting the Tribunal, including regulations
(a) prescribing the terms and conditions of appointment of its members;
(b) respecting conflict of interest;
(c) prescribing the chairperson’s powers and duties;
(d) respecting the absence or incapacity of the chairperson or another member; and
(e) respecting the hiring and terms and conditions of employment of claims officers and other employees of the Tribunal.
Regulations — compensation
80. The Governor in Council may make regulations respecting the compensation that may be awarded by the Tribunal, including regulations
(a) establishing priorities for classes of damage;
(b) reducing awards on a pro rata basis for specified classes of damage and fixing a maximum award within a specified class of damage, for the purposes of paragraph 60(2)(b); and
(c) establishing classes of damage for which compensation is not to be awarded.
Amendments to the Nuclear Liability and Compensation Act
121. (1) Subparagraph 9(1)(b)(ii) of the Nuclear Liability and Compensation Act is repealed.
(2) Subsection 9(3) of the Act is repealed.
122. Section 70 of the Act is repealed.
Consequential Amendments
1992, c. 34
Transportation of Dangerous Goods Act, 1992
123. Subsection 22(7) of the Transportation of Dangerous Goods Act, 1992 is replaced by the following:
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.
1997, c. 9
Nuclear Safety and Control Act
124. Subsection 42(3) of the Nuclear Safety and Control Act is replaced by the following:
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.
125. Section 64 of the Act is replaced by the following:
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.
126. Section 82 of the Act is repealed.
Terminology
Replacement of “Nuclear Liability Reinsurance Account” — Acts
127. (1) Unless the context requires otherwise, “Nuclear Liability Reinsurance Account” is replaced with “Nuclear Liability Account” in any other Act of Parliament.
Replacement of “Nuclear Liability Reinsurance Account” — Regulations
(2) Unless the context requires otherwise, “Nuclear Liability Reinsurance Account” is replaced with “Nuclear Liability Account” in any regulation, as defined in section 2 of the Statutory Instruments Act, made under an Act of Parliament.
Repeal
Repeal
128. The Nuclear Liability Act, chapter N-28 of the Revised Statutes of Canada, 1985, is repealed.
Coming into Force
Order in council
129. (1) The following provisions of the Nuclear Liability and Compensation Act, as enacted by section 120, come into force on a day or days to be fixed by order of the Governor in Council: section 1, the definitions “approved insurer”, “nuclear fuel”, “nuclear incident”, “nuclear installation”— except for the words “other than in the definition “Installation State” and subparagraphs 9(1)(b.1)(i) and (b.2)(i) and 9(4)(b)(i) and (c)(i) of the English version” — “nuclear material”, “nuclear reactor”, “operator”, “radioactive products or waste” and “Tribunal” in section 2, sections 3 to 8, paragraph 9(1)(a), subparagraphs 9(1)(b)(i) and (ii), paragraph 9(1)(c) — except when the combination is in relation to materials referred to in subparagraph 9(1)(b)(iii) or (iv) or paragraph 9(1)(b.1) or (b.2) — subsections 9(2) and (3), sections 10 to 18, 20 and 22 to 26, subsections 27(1) and (4), sections 28 to 33, subsections 34(1), (2) and (6), sections 35 to 40, subsections 41(1) and (2), sections 42 to 49 and 51 to 67, subsections 68(1) and (3), sections 69, 70 and 77, paragraphs 78(a), (b), (e) and (f) and sections 79 and 80.
Order — after coming into force of Convention
(2) The following provisions of the Nuclear Liability and Compensation Act, as enacted by section 120, come into force on a day to be fixed by order of the Governor in Council, but that day may not be earlier than the day on which the Convention, as defined in section 2 of that Act, comes into force: the definitions “Contracting State”, “Convention”, “Installation State”, the words “other than in the definition “Installation State” and subparagraphs 9(1)(b.1)(i) and (b.2)(i) and 9(4)(b)(i) and (c)(i) of the English version” in the definition “nuclear installation” and the definition “public funds” in section 2, subparagraphs 9(1)(b)(iii) and (iv), paragraphs 9(1)(b.1) to (c) — when the combination is in relation to materials referred to in subparagraph 9(1)(b)(iii) or (iv), paragraph 9(1)(b.1) or (b.2) — subsections 9(4) to (6), sections 19 and 21, subsections 27(2) and (3), 34(3) to (5) and 41(3), section 50, subsection 68(2), sections 71 to 76 and paragraphs 78(c) and (d).
Order in council
(3) Sections 121 to 128 come into force on a day or days to be fixed by order of the Governor in Council.
SCHEDULE 1
(Section 28)
SCHEDULE 1
(Subsections 14.1(1), 25.1(1) and 25.4(3))
PROVISIONS
SCHEDULE 2
(Subsections 14.1(1), 25.1(1) and (2) and 25.4(3))
PROVISIONS
PART 1 — PROVISIONS OF ACTS
PART 2 — PROVISIONS OF REGULATIONS
SCHEDULE 2
(Section 70)
SCHEDULE 1
(Subsections 149.1(1), 161.1(1) and 161.5(3))
PROVISIONS
SCHEDULE 2
(Subsections 149.1(1), 161.1(1) and (2) and 161.5(3))
PROVISIONS
PART 1 — PROVISIONS OF ACTS
PART 2 — PROVISIONS OF REGULATIONS
SCHEDULE 3
(Section 109)
SCHEDULE V
(Subsections 153.1(1), 166.1(1) and 166.5(3))
PROVISIONS
SCHEDULE VI
(Subsections 153.1(1), 166.1(1) and (2) and 166.5(3))
PROVISIONS
PART 1 — PROVISIONS OF ACTS
PART 2 — PROVISIONS OF REGULATIONS
SCHEDULE 4
(Section 120)
SCHEDULE
(Section 2 and subsections 9(4), 27(2), 72(1), 73(1) and 76(2) and (3))
CONVENTION ON SUPPLEMENTARY COMPENSATION FOR NUCLEAR DAMAGE
PART 1
CERTAIN ARTICLES OF THE CONVENTION
Article III
...
Undertaking
1. Compensation in respect of nuclear damage per nuclear incident shall be ensured by the following means:
(a) (i) the Installation State shall ensure the availability of 300 million SDRs or a greater amount that it may have specified to the Depositary at any time prior to the nuclear incident, or a transitional amount pursuant to subparagraph (ii);
(ii) a Contracting Party may establish for the maximum of 10 years from the date of the opening for signature of this Convention, a transitional amount of at least 150 million SDRs in respect of a nuclear incident occurring within that period.
...
Article VI
Notification of Nuclear Damage
Without prejudice to obligations which Contracting Parties may have under other international agreements, the Contracting Party whose courts have jurisdiction shall inform the other Contracting Parties of a nuclear incident as soon as it appears that the damage caused by such incident exceeds, or is likely to exceed, the amount available under Article 111.1 (a) and that contributions under Article 111.1 (b) may be required. The Contracting Parties shall without delay make all the necessary arrangements to settle the procedure for their relations in this connection.
Article VII
Call for Funds
1. Following the notification referred to in Article VI, and subject to Article X.3, the Contracting Party whose courts have jurisdiction shall request the other Contracting Parties to make available the public funds required under Article 111.1 (b) to the extent and when they are actually required and shall have exclusive competence to disburse such funds.
2. Independently of existing or future regulations concerning currency or transfers, Contracting Parties shall authorize the transfer and payment of any contribution provided pursuant to Article III.1 (b) without any restriction.
Article VIII
List of Nuclear Installations
1. Each Contracting State shall, at the time when it deposits its instrument of ratification, acceptance, approval or accession, communicate to the Depositary a complete listing of all nuclear installations referred to in Article IV.3. The listing shall contain the necessary particulars for the purpose of the calculation of contributions.
2. Each Contracting State shall promptly communicate to the Depositary all modifications to be made to the list. Where such modifications include the addition of a nuclear installation, the communication must be made at least three months before the expected date when nuclear material will be introduced into the installation.
3. If a Contracting Party is of the opinion that the particulars, or any modification to be made to the list communicated by a Contracting State pursuant to paragraphs 1 and 2, do not comply with the provisions, it may raise objections thereto by addressing them to the Depositary within three months from the date on which it has received notice pursuant to paragraph 5. The Depositary shall forthwith communicate this objection to the State to whose information the objection has been raised. Any unresolved differences shall be dealt with in accordance with the dispute settlement procedure laid down in Article XVI.
4. The Depositary shall maintain, update and annually circulate to all Contracting States the list of nuclear installations established in accordance with this Article. Such list shall consist of all the particulars and modifications referred to in this Article, it being understood that objections submitted under this Article shall have effect retrospective to the date on which they were raised, if they are sustained.
5. The Depositary shall give notice as soon as possible to each Contracting Party of the communications and objections which it has received pursuant to this Article.
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Article XVIII
Ratification, Acceptance, Approval
1. This Convention shall be subject to ratification, acceptance or approval by the signatory States. An instrument of ratification, acceptance or approval shall be accepted only from a State which is a Party to either the Vienna Convention or the Paris Convention, or a State which declares that its national law complies with the provisions of the Annex to this Convention, provided that, in the case of a State having on its territory a nuclear installation as defined in the Convention on Nuclear Safety of 17 June 1994, it is a Contracting State to that Convention.
2. The instruments of ratification, acceptance or approval shall be deposited with the Director General of the International Atomic Energy Agency who shall act as the Depositary of this Convention.
3. A Contracting Party shall provide the Depositary with a copy, in one of the official languages of the United Nations, of the provisions of its national law referred to in Article II.1 and amendments thereto, including any specification made pursuant to Article III. I (a), Article XI.2, or a transitional amount pursuant to Article III.1 (a)(ii). Copies of such provisions shall be circulated by the Depositary to all other Contracting Parties.
Article XIX
Accession
1. After its entry into force, any State which has not signed this Convention may accede to it. An instrument of accession shall be accepted only from a State which is a Party to either the Vienna Convention or the Paris Convention, or a State which declares that its national law complies with the provisions of the Annex to this Convention, provided that, in the case of a State having on its territory a nuclear installation as defined in the Convention on Nuclear Safety of 17 June 1994, it is a Contracting State to that Convention.
2. The instruments of accession shall be deposited with the Director General of the International Atomic Energy Agency.
3. A Contracting Party shall provide the Depositary with a copy, in one of the official languages of the United Nations, of the provisions of its national law referred to in Article II.1 and amendments thereto, including any specification made pursuant to Article III.1 (a), Article XI.2, or a transitional amount pursuant to Article III.1 (a)(ii). Copies of such provisions shall be circulated by the Depositary to all other Contracting Parties.
PART 2
PORTIONS OF THE ANNEX TO THE CONVENTION
Article 1
Definitions
1. In addition to the definitions in Article I of this Convention, the following definitions apply for the purposes of this Annex:
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(b) “Nuclear Installation” means:
(i) any nuclear reactor other than one with which a means of sea or air transport is equipped for use as a source of power, whether for propulsion thereof or for any other purpose;
(ii) any factory using nuclear fuel for the production of nuclear material, or any factory for the processing of nuclear material, including any factory for the re-processing of irradiated nuclear fuel; and
(iii) any facility where nuclear material is stored, other than storage incidental to the carriage of such material;
provided that the Installation State may determine that several nuclear installations of one operator which are located at the same site shall be considered as a single nuclear installation.
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(d) “Operator”, in relation to a nuclear installation, means the person designated or recognized by the Installation State as the operator of that installation.
Published under authority of the Speaker of the House of Commons
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