Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows:
RSNL1990 cC-2
as amended
1. Section 2 of the Canada-Newfoundland and Labrador Atlantic Accord Implementation
Newfoundland and Labrador Act is amended by deleting the word "and"
at the end of paragraph (s), by deleting the period at the end of paragraph (t)
and substituting a semi-colon, and the word "and" and by adding
immediately after that paragraph the following:
(u) "spill-treating agent", except in
section 156.2, means a spill-treating agent that is on the list established
under section 14.2 of the Canada Oil and
Gas Operations Act.
2. Subsection 7(1) of the Act is repealed and the
following substituted:
Approval of
federal minister before making of regulations
7. (1) Before
a regulation is made under section 29.1, subsection 41(7), section 63,
subsection 66(2), sections 114, 118, 121 or 145, subsection 155(4), subsections
157(2.3), 158(1.2) or 198.2(1) or section 199, the provincial minister shall
consult the federal minister with respect to the proposed regulation and a
regulation shall not be made without the approval of the federal minister.
3. Section 29.1 of the Act is repealed and the
following substituted:
Regulations
29.1 (1) Subject
to section 7, the Lieutenant-Governor in Council may make regulations
respecting
(a) 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 a product under this Act;
(b) 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 paid by
(i) a person who makes an application for an
authorization under paragraph 134(1)(b) or an application under subsection
135(2), or
(ii) the holder of an operating licence issued
under paragraph 134(1)(a) or an authorization issued under paragraph 134(1)(b);
and
(c) the refund of all or part of a fee or charge
referred to in paragraph (a) or (b), or the method of calculating that refund.
(2) The amount of the fees or charges referred to
in paragraph (1)(a) shall not exceed the cost of providing the services or
products.
(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.
4. Subsection 44(1) of the Act is repealed and the
following substituted:
Public review
44. (1) Subject
to a directive issued under subsection 42(1), the board shall conduct a public
review in relation to a potential development of a pool or field unless the
board is of the opinion that it is not required on a ground the board considers
to be in the public interest.
5. The Act is amended by adding immediately after
section 44 the following:
Public hearing
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
a 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
a 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 131, 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 115(5)(a) to (e) and (i).
6. Subsection 75(2) of the Act is repealed and the
following substituted:
(2) Notwithstanding subsection (1), an order may
not be made under subsection (1) with respect to an interest owner who has completed
a well on the relevant portion of the offshore area within 6 months after the
completion of that well.
7. (1) Paragraph 115(1)(k) of the Act is
repealed and the following substituted:
(k) "well termination date" means the
date on which a well has been abandoned, completed or suspended in accordance
with applicable regulations respecting the drilling for petroleum made under
Part III.
(2) Section 115 of the Act is amended by adding
immediately after subsection (5) the following:
(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 province, or
a foreign government, or to the representatives of any of their agencies, for
the purposes of a federal, provincial or foreign law, 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 the provincial minister consent
in writing.
(7) The board may disclose to the federal minister
and the 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 the 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 of Canada or an Act of
the Legislature to disclose that information or documentation.
(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.
(9) Subsection (2) does not apply in respect of
information regarding the applicant for an operating licence or authorization
under subsection 134(1) or the scope, purpose, location, timing and nature of
the proposed work or activity for which the licence or authorization is sought.
(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.
(11) Subject to section 115.1, 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 134(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, however the board is not 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 his, her or
its 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 131,
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.
(12) Subsections (9) to (11) do not apply in
respect of information or documentation described in paragraphs (5)(a) to (e)
and (i).
8. The Act is amended by adding immediately after
section 115 the following:
Notice of disclosure
115.1 (1) If
the board intends to disclose any information or documentation under subsection
115(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.
(2) A person to whom a notice is required to be
given under subsection (1) may waive the requirement, and if he, she or it has consented
to the disclosure, he, she or it is considered to have waived the requirement.
(3) A notice given under subsection (1) shall include
(a) a statement that the board intends to disclose
information or documentation under subsection 115(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.
(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.
(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 a review is not requested
under subsection (7) within 20 days after the day on which the notice is given,
the board shall disclose the 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).
(7) A 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 for a review of the decision.
(8) An application made under subsection (7) shall
be heard and determined in a summary way in accordance with the applicable
rules of practice and procedure of that court.
(9) In a proceeding arising from an application
under subsection (7), the Trial Division shall take every reasonable
precaution, including, when appropriate, conducting hearings in private, 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.
9. Section 131.1 of the Act is amended by adding
immediately after paragraph (b) the following:
(b.1) accountability in accordance with the
"polluter pays" principle;
10. Section 133.1 of the Act is repealed and the
following substituted:
Delegation of
board's powers
133.1 The
board may delegate to a person any of the board's powers under section 134,
134.4, 134.6, 135.1, 135.2, 157.1 or 158, and the person shall exercise those
powers in accordance with the terms of the delegation.
11. Sections 134 to 134.3 of the Act are repealed
and the following substituted:
Licences and authorizations
134. (1) The
board may, on application made in the form and containing the information fixed
by it, and made in the prescribed manner, issue
(a) an operating licence; and
(b) subject to section 45, an authorization with
respect to each work or activity proposed to be carried on.
(2) An operating licence expires on March 31
immediately after the day on which it is issued and may be renewed for
successive periods not exceeding one year each.
(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.
(4) On receipt by the board of an application for
an authorization for a work or activity referred to in paragraph (1)(b) or of
an application to amend such an authorization, the board shall provide a copy
of the application to the chief safety officer.
(5) An authorization shall be subject to those approvals
that the board determines or that may be granted in accordance with the regulations
and those requirements and deposits that the board determines or that may be
prescribed, including
(a) requirements relating to liability for loss,
damage, costs or expenses;
(b) requirements for the carrying out of
environmental programs or studies; and
(c) requirements for the payment of expenses
incurred by the board in approving the design, construction and operation of production
facilities and production platforms, as those terms are defined in the
regulations.
(6) The approvals, requirements and deposits that
are determined, granted or prescribed shall not be inconsistent with the provisions
of this Act or the regulations.
(7) The board may suspend or revoke an operating
licence or an authorization for failure to comply with, contravention of or
default in respect of
(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;
(b) a fee or charge payable in accordance with
regulations made under section 29.1;
(c) a requirement undertaken in a declaration
referred to in subsection 135.1(1);
(d) subsection 135.1(3), 135.2(2), 157.1(4) or (5)
or 158(1.3), (1.4) or (5);
(e) any provision of Part III.1; or
(f) applicable regulations.
Environmental
assessment
134.1 (1) If
an application for an authorization under paragraph 134(1)(b) or an application
made under subsection 135(2) is in respect of a physical activity described in
subsection (2), the board shall issue a 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.
(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.
(3) The physical activity referred to in
subsection (2) includes any physical activity that is incidental to the
physical activity described in paragraphs (2)(a) to (d).
(4) 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).
(5) 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 (4) begins and ends.
Participant
funding program
134.2 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 134.1(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 134(1)(b) or an application made under subsection 135(2).
Right of entry
134.3 (1) Subject
to subsection (2), a person may, for the purpose of exploring for or exploiting
petroleum, enter on and use a portion of the offshore area in order to carry on
a work or activity authorized under paragraph 134(1)(b).
(2) Where a person occupies a portion of the offshore
area under a lawful right or title, other than an authorization under paragraph
134(1)(b) or an interest as defined in Part II, a person may not enter on or
use that portion for a purpose referred to in subsection (1) without the
consent of the occupier or, where consent has been refused, except in
accordance with the terms and conditions imposed by a decision of an arbitrator
made in accordance with the regulations.
SAFETY OF WORKS AND ACTIVITIES
Safety
134.4 The board shall, before issuing an authorization for a work or
activity referred to in paragraph 134(1)(b), consider the safety of the work or
activity by reviewing, in consultation with the chief safety officer, the
system as a whole and its components, including its structures, facilities,
equipment, operating procedures and personnel.
SPILL-TREATING AGENT
Net environmental
benefit
134.5 (1) The
board shall not permit the use of a spill-treating agent in an authorization
issued under paragraph 134(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.
(2) Subsection (1) shall come into force and, subsection
(3) shall be repealed on a day to be proclaimed by the Lieutenant-Governor in
Council.
(3) The Board shall not permit the use of a spill-treating
agent in an authorization issued under paragraph 134(1)(b) unless the board
determines that the use of the spill-treating agent is likely to achieve a net
environmental benefit.
FINANCIAL REQUIREMENTS
Compliance with certain
provisions
134.6 The board shall, before issuing an authorization
for a work or activity referred to in paragraph 134(1)(b), ensure that the
applicant has complied with the requirements of subsections 157.1(1) or (2) and
158(1) or (1.1) in respect of that work or activity.
12. Subsection 145(1) of the Act is repealed and
the following substituted:
Regulatory power
145. (1) Subject
to section 7, the Lieutenant-Governor in Council may make regulations for the
purpose of safety, the protection of the environment and accountability as well
as for the production and conservation of petroleum resources
(a) defining "oil" and "gas"
for the purpose of Divisions I and II, "installation" and
"equipment" for the purpose of section 135.1 and 135.2 and
"serious" for the purpose of section 161;
(b) concerning the exploration and drilling for,
and the production, processing and transportation of, petroleum and works and
activities related to that exploration, drilling, production, processing and
transportation;
(c) concerning the measures to be taken in
preparation for or in the case of a spill, as defined in subsection 155(1),
including measures concerning the use of a spill-treating agent;
(d) concerning the process for the determination of
net environmental benefit;
(e) concerning the variation or revocation of an
approval referred to in subsection 156.1(1);
(f) authorizing the board, or a person, to make
those orders that may be specified in the regulations, and to exercise those
powers and perform those duties that may be necessary for
(i) the management and control of petroleum
production,
(ii) the removal of petroleum from the offshore
area, and
(iii) the design, construction, operation or
abandonment of pipeline within the offshore area;
(g) concerning arbitration for the purpose of
subsection 134.3(2), including the costs of or incurred in relation to those
arbitrations;
(h) concerning the approvals to be granted as
conditions of authorizations issued under paragraph 134(1)(b);
(i) concerning certificates for the purpose of
section 135.2;
(j) prohibiting the introduction into the
environment of substances, classes of substances and forms of energy, in prescribed
circumstances;
(k) authorizing the discharge, emission or escape
of petroleum for the purpose of subsection 155(1) in the quantities, at the
locations, under the conditions and by the persons that may be specified in the
regulations;
(l) establishing the requirements for a pooled
fund for the purpose of subsection 158(1.1);
(m) concerning the circumstances under which the
board may make a recommendation for the purpose of subsection 158.1(1) and the information to be submitted
with respect to that recommendation;
(n) concerning the creation, conservation and
production of records; and
(o) prescribing anything that is required to be
prescribed for the purpose of this Part.
13. Subsection 147(1) of the Act is repealed and
the following substituted:
Guidelines and
interpretation notes
147. (1) The
board may issue and publish, in any manner that the board considers
appropriate, guidelines and interpretation notes with respect to the
application and administration of sections 45, 134 and 135 and subsection
158(1.1) and any regulations made under section 29.1 and 145.
14. Subsections 155(1) to (3) of the Act are
repealed and the following substituted:
Definitions re
petroleum spills
155. (1) In
sections 156 to 161, "spill" means a discharge, emission or escape of
petroleum, other than one that is authorized under section 156.2, the
regulations or a federal law but 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 (Canada) applies.
(2) In section 157, "actual loss or
damage" includes loss of income, including future income, and, with
respect to aboriginal peoples of Canada,
includes loss of hunting, fishing and gathering opportunities, but does not
include loss of income recoverable under subsection 42(3) of the Fisheries Act (Canada).
(3) In sections 157, 158 and 161,
"debris" means an installation or structure that was put in place in
the course of any work or activity required to be authorized under paragraph
134(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 has been
jettisoned or displaced in the course of that work or activity.
15. The Act is amended by adding immediately after
section 156 the following:
Spill-treating
agent
156.1 (1)
The provisions referred to in Schedule 1 of the federal Act do not apply to the
deposit of a spill-treating agent and those referred to in Schedule 2 of the
federal Act 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
134(1)(b) permits the use of the spill-treating agent;
(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;
(c) the agent is used for the purpose of
subsection 156(3) or (4); and
(d) the agent is used in accordance with the
regulations.
(2) The provisions referred to in Schedule 2 of
the federal Act 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, notwithstanding subsection (1), by the interaction between
the spill-treating agent and the spilled oil.
(3) Other than in the case of a small-scale test,
the chief conservation officer shall not approve the use a spill-treating agent
unless the chief conservation officer determines, taking into account any factors
prescribed in regulations and any factors the chief conservation officer considers
appropriate, that the use of the spill-treating agent is likely to achieve a
net environmental benefit.
(4) Subsections (1) to (3) shall come into force,
and subsections (5) to (7) shall be repealed on a day to be proclaimed by the
Lieutenant-Governor in Council.
(5) The provisions referred to in Schedule 1 of
the federal Act do not apply to the deposit of a spill-treating agent and those
referred to in Schedule 2 of the federal Act 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
134(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 purpose of
subsection 156(3) or (4).
(6) The provisions referred to in Schedule 2 of
the federal Act 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, notwithstanding subsection (1), by the interaction between
the spill-treating agent and the spilled oil.
(7) 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 provincial minister and the federal minister;
(b) the federal minister has consulted with the
federal minister of 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.
Scientific
research
156.2 The
provincial minister may grant approval for the deposit of a spill-treating
agent, oil or oil surrogate where
(a) the deposit is 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; and
(b) the federal minister requested the approval of
the provincial minister.
16. (1) Paragraphs 157(1)(a) and (b) of the
Act are repealed and the following substituted:
(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 a 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 the Crown in right of Canada or the province or another 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 134(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).
(2) Subsections 157(2) to (4) of the Act are
repealed and the following substituted:
(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 the Crown 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 134(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.
(2.1) A person who is required to obtain an authorization
under paragraph 134(1)(b) and who retains, to carry out 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).
(2.2) For the purpose 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 Artic Waters Pollution Prevention Act (Canada), 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.
(2.3) Subject to section 7, the Lieutenant-Governor in
Council may, by regulation, increase the amounts referred to in subsection
(2.2).
(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 and where the other Act does not set out a limit of liability, the limits
set out in subsection (2.2) do not apply.
(2.5) Only the Crown 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).
(3) All claims under this section may be sued for
and recovered in any court of competent jurisdiction in Canada and shall rank
(a) firstly, without preference, in favour of
persons incurring actual loss or damage described in subsections (1) and (2);
(b) secondly, without preference, to meet any
costs and expenses described in those subsections; and
(c) lastly, to recover a loss of non-use value
described in those subsections.
(4) Subject to subsection (2.5), nothing in this
section suspends or limits
(a) a legal liability or remedy for an act or
omission by reason only that the act or omission is an offence under this Division
or gives rise to liability under this section;
(b) a recourse, indemnity or relief available at
law to a person who is liable under this section against another person; or
(c) the operation of an applicable law or rule of
law that is consistent with this section.
17. The Act is amended by adding immediately after
section 157 the following:
Proof of
financial resources
157.1 (1) An
applicant for an authorization under paragraph 134(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 157(2.2) that apply to it, however 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.
(2) An applicant for an authorization under
paragraph 134(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.
(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.
(4) The holder of an authorization under paragraph
134(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.
(5) The holder of an authorization under paragraph
134(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.
(6) The board may reduce the period referred to in
subsection (5) 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.
18. (1) Subsections 158(1) to (2) of the Act are
repealed and the following substituted:
Financial responsibility
158. (1) An
applicant for an authorization under paragraph 134(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.
(1.1) 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.
(1.2) Subject to section 7, the Lieutenant-Governor
in Council may, by regulation, increase the amount referred to in subsection
(1.1).
(1.3) The holder of an authorization under paragraph
134(1)(b) shall ensure that the proof of financial responsibility referred to
in subsection (1) or (1.1) remains in force for the duration of the work or activity
in respect of which the authorization is issued.
(1.4) The holder of an authorization under paragraph
134(1)(b) shall also ensure that the proof referred to in paragraph (1)(a) or
subsection (1.1) 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.
(1.5) The
board may reduce the period referred to in subsection (1.4) 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.
(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 (1.1), in respect of any claim for which
proceedings may be instituted under section 157, whether or not those proceedings
have been instituted.
(2) Section 158 of the Act is amended by adding
immediately after subsection (4) the following:
(5) The holder of an authorization under paragraph
134(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.
19. The Act is amended by adding immediately after
section 158 the following:
Lesser amount
158.1 (1) The
provincial minister may, by order, on the recommendation of the board and with
the federal minister's approval, approve an amount that is less than the amount
referred to in paragraph 157(2.2)(a) or (b) or 158(1)(a) in respect of an
applicant for, or a holder of, an authorization under paragraph 134(1)(b).
(2) If the provincial minister approves an amount
that is less than the amount referred to in paragraph 157(2.2)(a) or (b) in
respect of an applicant for an authorization under paragraph 134(1)(b), that
applicant, for the purposes of subsection 157.1(1), shall only provide proof
that it has the financial resources necessary to pay the adjusted amount
approved by the provincial minister.
(3) An applicant for an authorization under paragraph 134(1)(b) does not contravene
paragraph 158(1)(a) if that applicant provides proof of financial
responsibility in the amount that is approved by the provincial minister under
this section.
20. Subsections 190(3) and (4) of the Act are
repealed and the following substituted:
(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 sentencing 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.
(4) The aggravating factors are as follows:
(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 the commission, the offender increased his, her or its revenue
or decreased his, her or its costs or intended to increase his, her
or its revenue or decrease his, her or its
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.
(5) The absence of an aggravating factor set out
in subsection (4) is not a mitigating factor.
(6) For the purposes of paragraphs (4)(b) to (d),
"damage" includes loss of use value and non-use value.
(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.
(8) Where a person establishes that he or she
exercised due diligence to prevent the commission of an offence the person
shall not be found guilty of that offence.
(9) Notwithstanding subsection 149(1), a person
does not commit an offence under subsection 149(1) by reason of committing
waste as defined in paragraph 149(2)(f) or (g) unless that person has been
ordered by the committee to take measures to prevent the waste and has failed
to comply.
21. Sections 190.2 to 190.5 of the Act are
repealed.
22. Section 192 of the Act is repealed and the
following substituted:
Order of court
192. (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 measures that
the court considers appropriate to avoid injury or damage that may result from
the act or omission that constituted the offence, or to remedy 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 his
or her 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 the Crown,
for the purpose of promoting the conservation, protection or restoration of the
environment, or to pay into the consolidated revenue fund 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 that officer within 3 years after the conviction,
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; or
(q) prohibiting the offender from taking measures
to acquire an interest or from applying for a new licence or other authorization
under this Act during any period that the court considers appropriate.
(2) An order made under subsection (1) comes into
force on the day on which the order is made or on another day that the court
may determine, but shall not continue in force for more than 3 years after that
day.
(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.
(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
192.1 (1) If
a court has made, in relation to an offender, an order under section 192, 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.
(2) Notwithstanding subsection (1), 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
192.2 If
an application made under subsection 192.1(1) in relation to an offender has
been heard by a court, another application may not be made under section 192.1
in relation to the offender except with leave of the court.
Recovery of fines
and amounts
192.3 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 192(1) or 192.1(1), the prosecutor may, by filing the conviction
or order, enter as a judgment the amount of the fine or the amount ordered to
be paid, and costs, if any, in the Trial Division, and the judgment is enforceable
against the person in the same manner as if it were a judgment rendered against
him, her or it in that court in civil proceedings.
23. The Act is amended by adding immediately after
section 198.1 the following:
ADMINISTRATIVE MONETARY PENALTIES
Regulations
198.2 (1) Subject to section 7, the Lieutenant-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) an 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 198.7, 198.12 or 198.15, including the manner and
proof of service and the circumstances under which the documents are considered
to be served.
(2) The amount that may be determined under any
regulations made under paragraph (1)(b) as the penalty to 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
198.3 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 198.14.
VIOLATIONS
Commission of
violation
198.4 (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 198.2(1)(a)
commits a violation and is liable to a penalty of an amount to be determined in
accordance with the regulations.
(2) The purpose of the penalty is to promote
compliance with this Part and not to punish.
Liability of directors,
officers, etc.
198.5 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
198.6 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
198.7 (1) If a person designated under
paragraph 198.3(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.
(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 his, her or its right,
under section 198.12, to request a review with respect to the amount of the
penalty or the facts of the violation, and 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 he, she or it does not
pay the penalty or exercise his, her or its right referred to in paragraph (d),
he, she or it will be considered to have committed the violation and is liable
to the penalty set out in the notice.
RULES ABOUT VIOLATIONS
Certain defences
not available
198.8 (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.
(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
198.9 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
198.10 (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.
(2) A violation is not an offence and,
accordingly, section 126 of the Criminal
Code does not apply in respect of a violation.
Limitation period
198.11 A notice of violation shall not be issued more than 2 years after the
day on which the matter giving rise to the violation occurred.
REVIEWS
Right to request
review
198.12 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
198.13 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 198.3(b) may cancel the notice of violation or correct an error
in it.
Review
198.14 (1) On receipt of
a request made under section 198.12, the board shall conduct the review or
cause the review to be conducted by a person designated under paragraph 198.3(d).
(2) The board shall conduct the review if the
notice of violation was issued by a person designated under paragraph 198.3(d).
Object of review
198.15 (1) The board or
the person conducting the review shall determine 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.
(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.
(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 shall
correct the amount of the penalty.
(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 198.7 or as set out in the determination if the
amount of the penalty was corrected under subsection (3).
(5) A determination made under this section is
final and binding and, subject to review by the Trial Division, is not subject
to appeal or to review by any court.
Burden of proof
198.16 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
198.17 If a person pays the
penalty set out in the notice of violation, the person is considered to have
committed the violation and proceedings in respect of it are ended.
Failure to act
198.18 A person that neither
pays the penalty imposed under this Part nor requests a review within the period
referred to in section 198.12 is considered to have committed the violation and
is liable to the penalty.
RECOVERY OF PENALTIES
Debt due the
Crown
198.19 (1) A penalty
constitutes a debt due to the Crown and
may be recovered in the Trial Division.
(2) A proceeding to recover a debt shall not be
instituted more than 5 years after the day on which the debt becomes payable.
Certificate
198.20 (1) The board may
issue a certificate of non-payment certifying the unpaid amount of any debt
referred to in subsection 198.19(1).
(2) Registration in the Trial Division 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
198.21 In the absence of
evidence to the contrary, a document that appears to be a notice issued under
subsection 198.7(1) is presumed to be authentic and is proof of its contents in
any proceeding in respect of a violation.
Publication
198.22 The board may make
public the nature of the violation, the name of the person who committed it and
the amount of the penalty.
24. Part IV of the Act is repealed.
Commencement
25. 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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