Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows:
ELECTRICAL POWER CONTROL ACT, 1994
SNL1994 cE-5.1
as amended
1. (1) Section 2 of the Electrical Power Control Act, 1994 is amended by adding immediately
after paragraph (j) the following:
(j.1) "Muskrat Falls Project" means the Muskrat
Falls Project as defined in the Energy
Corporation Act;
(2) Section 2 of the Act is amended by adding
immediately after paragraph (o) the following:
(o.1) "public utility" means a public utility as
defined in the Public Utilities Act;
2. Section 5.1 of the Act is amended by renumbering it as subsection 5.1(1) and by adding
immediately after that subsection the following:
(2) Notwithstanding a provision of this Act or
the
Public Utilities Act, for the purpose
of the Muskrat Falls Project the Lieutenant-Governor in Council may direct the
public utilities board to implement policies, procedures and directives
respecting the exercise of powers and the performance of the duties of the
public utilities board under this Act or the
Public Utilities Act, including policies, procedures and directives
respecting
(a) the costs, expenses and allowances that
are to be included in the rates, tolls and charges approved for a public
utility, and the terms of that inclusion;
(b) the terms of the interim orders, orders or
approvals determining rates, tolls and charges of a public utility;
(c) the criteria to be applied by the public
utilities board for the approval or confirmation of an approval by the public
utilities board;
(d) the annual rate of return of a public
utility;
(e) whether or not a hearing shall be held;
(f) the commencement, suspension, continuation
or termination of a hearing or process; and
(g) the parameters, criteria and timing of the
exercise or restraint from exercise of a power or performance of a duty of the
public utilities board under this Act or the
Public Utilities Act.
(3) The public utilities board shall implement
the policies, procedures and directives of the Lieutenant-Governor in Council as
directed under subsection (2).
3. The Act is amended by adding immediately after
section 14 the following:
PART II.1
EXCLUSIVE RIGHT
Exclusive right to
supply, transmit, distribute and sell
14.1 (1) Notwithstanding
another provision of this Act or another Act,
(a) Newfoundland and Labrador Hydro shall have
the exclusive right to supply, distribute and sell electrical power or energy to
a retailer or an industrial customer in respect of the business or operations of
that retailer or industrial customer on the island portion of the province; and
(b) a retailer or an industrial customer shall
purchase electrical power or energy exclusively from Newfoundland and Labrador Hydro in respect of
the business or operations of that retailer or industrial customer on the island
portion of the province.
(2) Notwithstanding another provision of this
Act or another Act, a retailer or an industrial customer shall not develop, own,
operate, manage or control a facility for the generation and supply of
electrical power or energy either for its own use or for supply directly or
indirectly to or for the public or an entity on the island portion of the
province.
(3) Subsection (1) does not apply to an
industrial customer if that industrial customer is purchasing electrical power
or energy in respect of its business or operations on the island portion of the
province exclusively from a retailer to whom subsection (1) applies.
(4) Subsections (1) and (2) do not apply to
generation facilities owned, operated, managed or controlled by a retailer or an
industrial customer where the electrical power or energy generated is used by
the retailer or industrial customer exclusively in emergency circumstances.
(5) Subsection (2) does not apply to
generation facilities owned, operated, managed or controlled by a retailer or an
industrial customer where those
facilities existed on December 31, 2011, including the refurbishment of those
facilities.
(6) A contract or arrangement entered into
before or after the coming into force of this section which is contrary to this
section is unenforceable.
(7) Notwithstanding another provision of this
section, the Lieutenant-Governor in Council may, by order, exempt a retailer or
an industrial customer from the application of this section or a subsection of
it.
No liability
14.2
(1) A person is not entitled to compensation or damages from the Crown or a
minister, employee or agent of the Crown arising from, resulting from or
incidental to the operation of this Part.
(2) An action or proceeding does not lie or
shall not be instituted or continued against the Crown or a minister, employee
or agent of the Crown based on a cause of action arising from, resulting from or
incidental to the operation of this Part.
(3) For the purpose of this section, the
corporation established by the Energy
Corporation Act and Newfoundland
and Labrador Hydro are agents of the Crown.
ENERGY CORPORATION ACT
SNL2007 cE-11.01
as amended
4. The Energy
Corporation Act is amended by adding immediately after paragraph 2(f) the
following:
(f.1) "Muskrat Falls Project" means the Muskrat
Falls Project as described in section 2.1;
5. The Act is amended by adding immediately after
section 2 the following:
Muskrat Falls Project
2.1
(1) For the purpose of this Act, "Muskrat Falls Project" means a project by the
corporation, a subsidiary of the corporation, Newfoundland and Labrador Hydro
and Emera Inc., whether individually or by any combination of them, for
(a) the design, engineering, planning,
construction, commissioning, ownership, operation, maintenance, management and
control of equipment and facilities, to be comprised of
(i) the new hydroelectric plant to be
constructed at Muskrat Falls on the Churchill River, and all associated
facilities, including the intake structures, penstock, powerhouse, dams and
spillways,
(ii) a new HVdc transmission line and all
related components to be constructed between the Muskrat Falls hydroelectric
plant on the Churchill River and Soldier's Pond, including
(A) foundations, underground services, subsea
services, roads, buildings, erections and structures, whether temporary or
permanent,
(B) all other facilities, fixtures,
appurtenances and tangible personal property, including inventories, of any
nature whatsoever contained on or attaching to the transmission line, and
(C) all mechanical, electrical and other
systems and other technology installed under or upon anything referred to in
clause (A) or (B),
(iii) new transmission facilities to be
constructed between the Muskrat Falls hydroelectric plant on the Churchill River and
the generating plant located at Churchill Falls,
(iv)
new transmission facilities to be constructed by Emera Inc. between the island
portion of Newfoundland and Labrador and Cape Breton, Nova
Scotia including
(A) foundations, underground services, subsea
services, roads, buildings, erections and structures, whether temporary or
permanent,
(B) all other facilities, fixtures,
appurtenances and tangible personal property, including inventories, of any
nature whatsoever contained on or attaching to them, and
(C) all mechanical, electrical and other
systems and other technology installed under or upon anything referred to in
clause (A) or (B), and
(v) any associated upgrades to the bulk
electrical system or related control facilities on the island portion of the
province required as a result of subparagraphs (i) to (iv);
(b) the production, generation, storage,
transmission, delivery or provision of electrical power and energy from the
facilities in paragraph (a);
(c) the negotiation, conclusion, execution and
performance of agreements for activities referred to in paragraphs (a) and (b),
and in particular agreements respecting the
(i) construction, operations, maintenance and
administration,
(ii) acquisition of easements, rights-of-way,
permits, licences, certificates, consents and other authorizations,
(iii) engineering and procurement,
(iv) arrangements with aboriginal peoples,
(v) demobilization and decommissioning, and
(vi) any agreements, contracts or instruments
necessary or incidental to any activity described in this paragraph; and
(d)
raising and securing equity or debt financing and any related derivative
contracts necessary to construct the facilities and otherwise engage in the
activities referred to in paragraphs (a) to (c), including without limitation
the negotiation, conclusion and execution of agreements and security
documentation with a lender providing that financing or refinancing to the
projects.
(2) The Lieutenant-Governor in Council may
designate any activities, agreements and amendments in connection with or in
respect of subsection (1) entered into by the corporation, a subsidiary of the
corporation,
Newfoundland
and Labrador Hydro, and Emera Inc., whether individually or by any combination
of them
(a) to be included as part of the Muskrat
Falls Project where that activity, agreement or amendment may not otherwise
qualify under this section; and
(b) to be excluded from the Muskrat Falls
Project, notwithstanding another provision of this section.
(3) For the purpose of this section, "Emera
Inc." includes all affiliates, subsidiaries, successors and assigns of that
corporation.
6. The Act is amended by adding immediately after
section 3 the following:
Crown agency
status
3.1
(1) Notwithstanding subsections 3(5), (6) and (7), where the corporation enters
into contracts and ancillary arrangements relating to the Muskrat Falls Project,
the corporation shall be considered to have entered into those contracts and
ancillary arrangements in its own capacity and not as an agent of the Crown, and
the Crown shall not be liable as principal in contract, tort or otherwise at law
or equity for the liabilities of the corporation created directly or indirectly
by those contracts or arrangements.
(2) Notwithstanding subsection (1), the
corporation may execute contracts relating to the Muskrat Falls Project as an
agent of the Crown where
(a) the Lieutenant-Governor in Council has
approved the contract; and
(b) the contract explicitly states that the
corporation signs the contract as an agent of the Crown.
7. Paragraph 14(1)(a) of the Act is repealed and
the following substituted:
(a) where it is an agent of the Crown, on
behalf of the Crown, or where it is not an agent of the Crown, in its own
capacity, enter into contracts or other agreements and acquire and dispose of
and otherwise deal with real and personal property and all rights of all kinds
in the name of the corporation;
8. Section 16 of the Act is repealed and the
following substituted:
Application of
Acts
16.
Whether or not the corporation is an agent of the Crown
(a) the
Mechanics' Lien Act applies in respect of the corporation and all property
to which title is vested in the name of the corporation; and
(b) the
Workplace Health, Safety and Compensation
Act applies in respect of the corporation and its employees.
9. Section 27 of the Act is amended by renumbering
it as subsection 27(1) and by adding immediately after that subsection the
following:
(2) Notwithstanding subsection (1), in respect
of the Muskrat Falls Project, a payment or advance that the Crown may approve in
the exercise of a power conferred by this Act or be required to make under this
Act shall be paid by the Minister of Finance out of the Consolidated Revenue
Fund.
10. Section 28 of the Act is repealed and the
following substituted:
Total amount of
loan
28.
(1) The total amount of money to be raised by the corporation and its
subsidiaries in the aggregate by loans shall not exceed $600 million in Canadian
currency or its equivalent in the currency of another country.
(2) The total of all loans to the corporation
and its subsidiaries in the aggregate to be guaranteed by or on behalf of the
Crown shall not exceed $600 million in Canadian currency or its equivalent in
the currency of another country.
(3) In calculating the maximum amount of money
raised by way of loans by the corporation and its subsidiaries and of guarantees
given under this Act, no account shall be taken of amounts raised by way of loan
(a) that have been repaid or a part of the
proceeds of a loan to be raised for, or that has been spent on, the repayment,
refinancing, refunding, redemption, retirement or purchase of the whole or a
part of loans or securities of the corporation; or
(b) by the corporation or its subsidiaries in
respect of the Muskrat Falls Project.
HYDRO CORPORATION ACT, 2007
SNL2007 cH-17
11. Section 2 of the Hydro Corporation Act, 2007 is amended by adding immediately after
paragraph (f) the following:
(f.1) "Muskrat Falls Project" means the Muskrat
Falls Project as defined in the Energy
Corporation Act;
12. The Act is amended by adding immediately after
section 3 the following:
Crown agency
status
3.1
Notwithstanding subsections 3(4), (5) and (6), where the corporation enters into
contracts and ancillary arrangements relating to the purchase of electrical
energy, capacity and transmission services including contracts providing for
direct cost reimbursement to the Muskrat Falls Project, the corporation shall be
considered to have entered into those contracts and ancillary arrangements in
its own capacity and not as an agent of the Crown, and the Crown shall not be
liable as principal in contract, tort or otherwise at law or equity for the
liabilities of the corporation created directly or indirectly by those contracts
or arrangements.
13. Subsection 5(2) of the Act is repealed and the
following substituted:
(2) Notwithstanding subsection (1), the
corporation may engage in those activities that the Lieutenant-Governor in
Council may approve.
14. Paragraph 14(1)(a) of the Act is repealed and
the following substituted:
(a) where it is an agent of the Crown, on
behalf of the Crown, or where not an agent of the Crown, in its own capacity
enter into contracts or other agreements and acquire and dispose of and
otherwise deal with real and personal property and all rights of all kinds in
the name of the corporation;
15. Section 18 of the Act is repealed and the
following substituted:
Application of
Acts
18.
Whether or not the corporation is an agent of the Crown
(a) the
Mechanics' Lien Act applies in respect of the corporation and all property
to which title is vested in the name of the corporation; and
(b) the
Workplace Health, Safety and Compensation Act applies in respect of the
corporation and its employees.
16. Section 29 of the Act is amended by renumbering
it as subsection 29(1) and by adding immediately after that subsection the
following:
(2) Notwithstanding subsection (1), in respect
of the Muskrat Falls Project, a payment or advance that the Crown may approve in
the exercise of a power conferred by this Act or be required to make under this
Act shall be paid by the Minister of Finance out of the Consolidated Revenue
Fund.
Commencement
17. This Act, or a section, subsection, paragraph or
subparagraph of this Act, comes into force on a day or days to be proclaimed by
the Lieutenant-Governor in Council.
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