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St. John's, Newfoundland and Labrador, Canada

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Statutes of Newfoundland and Labrador 2014


CHAPTER 6

AN ACT TO AMEND THE CANADA-NEWFOUNDLAND AND LABRADOR ATLANTIC ACCORD IMPLEMENTATION NEWFOUNDLAND AND LABRADOR ACT

(Assented to June 23, 2015)

Analysis


1. S.2 Amdt.
Definitions

2. S.7 Amdt.
Approval of federal minister before making of regulations

3. S.29.1 R&S
Regulations

4. S.44 Amdt.
Public review

5. Ss.44.1 to 44.4 Added
44.1 Public hearing
44.2 Confidentiality
44.3 Confidentiality -
security
44.4 Exception

6. S.75 Amdt.
Drilling orders

7. S.115 Amdt.
Interpretation

8. S.115.1 Added
Notice of disclosure

9. S.131.1 Amdt.
Purpose

10. S.133.1 R&S
Delegation of board's powers

11. Ss.134 to 134.3 R&S
134. Licences and
authorizations
134.1 Environmental assessment
134.2 Participant funding
program
134.3 Right of entry
134.4 Safety
134.5 Net environmental
benefit
134.6 Compliance with
certain provisions

12. S.145 Amdt.
Regulatory power

13. S.147 Amdt.
Guidelines and interpretation notes

14. S.155 Amdt.
Definitions re petroleum spills

15. Ss.156.1 & 156.2 Added
156.1 Spill-treating agent
156.2 Scientific research

16. S.157 Amdt.
Recovery of loss, etc.

17. S.157.1 Added
Proof of financial resources

18. S.158 Amdt.
Financial responsibility

19. S.158.1 Added
Lesser amount

20. S.190 Amdt.
Offences

21. Ss.190.2 to 190.5 Rep.
190.2 Imprisonment
precluded in certain
cases
190.3 Orders of court
190.4 Variation of order
190.5 Subsequent
applications with
leave

22. S.192 R&S
192 Order of court
192.1 Variation of
sanctions
192.2 Subsequent
applications with
leave
192.3 Recovery of fines
and amounts

23. Ss.198.2 to 198.22 Added
198.2 Regulations
198.3 Powers
198.4 Commission of
violation
198.5 Liability of
directors, officers,
etc.
198.6 Proof of violation
198.7 Issuance and service
of notice of
violation
198.8 Certain defences not
available
198.9 Continuing
violation
198.10 Violation or offence
198.11 Limitation period
198.12 Right to request
review
198.13 Correction or
cancellation of
notice of violation
198.14 Review
198.15 Object of review
198.16 Burden of proof
198.17 Payment
198.18 Failure to act
198.19 Debt due the Crown
198.20 Certificate
198.21 Admissibility of
  documents
198.22 Publication

24. Part IV Rep.
THE OFFSHORE DEVELOPMENT FUND

25. Commencement


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.