• 94. (1) The Act is amended by adding the following after section 166:

  Marginal note:Spill-treating agents

  • 166.1 (1) The provisions referred to in Schedule V do not apply to the deposit of a spill-treating agent and those referred to in Schedule VI do not apply in respect of any harm that is caused by the spill-treating agent or by the interaction between the spill-treating agent and the spilled oil, if

    • (a) the authorization issued under paragraph 142(1)(b) permits the use of the spill-treating agent;

    • (b) the Chief Conservation Officer approves the use of the agent in response to the spill and it is used in accordance with any requirements set out in the approval; and

    • (c) the agent is used for the purposes of subsection 166(3) or (4).

  • Marginal note:Clarification

    (2) The provisions referred to in Schedule VI continue to apply to the holder of an authorization referred to in paragraph (1)(a) in respect of any harm that is caused by the spill or, despite subsection (1), by the interaction between the spill-treating agent and the spilled oil.

  • Marginal note:Net environmental benefit

    (3) Other than in the case of a small-scale test, the approval required under paragraph (1)(b) shall be in writing and shall not be granted unless

    • (a) the Chief Conservation Officer has consulted with the Federal Minister and the Provincial Minister with respect to the approval;

    • (b) the Federal Minister has consulted with the Minister of the Environment with respect to the approval; and

    • (c) the Chief Conservation Officer determines that the use of the agent is likely to achieve a net environmental benefit.

• (2) Paragraph 166.1(1)(b) of the Act is replaced by the following:

  • (b) other than in the case of a small-scale test that meets the prescribed requirements, the Chief Conservation Officer approves in writing the use of the agent in response to the spill and it is used in accordance with any requirements set out in the approval;

• (3) Subsection 166.1(1) of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):

  • (d) the agent is used in accordance with the regulations.

• (4) Subsection 166.1(3) of the Act is replaced by the following:

  • Marginal note:Net environmental benefit

    (3) Other than in the case of a small-scale test, the Chief Conservation Officer shall not approve the use of a spill-treating agent unless the Officer determines, taking into account any prescribed factors and any factors the Officer considers appropriate, that the use of the spill-treating agent is likely to achieve a net environmental benefit.

95. The Act is amended by adding the following after section 166.1:

Marginal note:1992, c. 35, s. 112(1)

• 96. (1) Paragraphs 167(1)(a) and (b) of the Act are replaced by the following:

  • (a) all persons to whose fault or negligence the spill or the authorized discharge, emission or escape of petroleum is attributable or who are by law responsible for others to whose fault or negligence the spill or the authorized discharge, emission or escape of petroleum is attributable are jointly and severally liable, to the extent determined according to the degree of the fault or negligence proved against them, for

    • (i) all actual loss or damage incurred by any person as a result of the spill or the authorized discharge, emission or escape of petroleum or as a result of any action or measure taken in relation to the spill or the authorized discharge, emission or escape of petroleum,

    • (ii) the costs and expenses reasonably incurred by the Board or Her Majesty in right of Canada or the Province or any other person in taking any action or measure in relation to the spill or the authorized discharge, emission or escape of petroleum, and

    • (iii) all loss of non-use value relating to a public resource that is affected by a spill or the authorized discharge, emission or escape of petroleum or as a result of any action or measure taken in relation to the spill or the authorized discharge, emission or escape of petroleum; and

  • (b) the person who is required to obtain an authorization under paragraph 142(1)(b) in respect of the work or activity from which the spill or the authorized discharge, emission or escape of petroleum emanated is liable, without proof of fault or negligence, up to the applicable limit of liability that is set out in subsection (2.2) for the actual loss or damage, the costs and expenses and the loss of non-use value described in subparagraphs (a)(i) to (iii).

• Marginal note:1992, c. 35, ss. 112(2), (3)(E) and (4)

  (2) Subsections 167(2) to (3) of the Act are replaced by the following:

  • Marginal note:Recovery of loss, etc., caused by debris

    (2) If, as a result of debris or as a result of any action or measure taken in relation to debris, there is a loss of non-use value relating to a public resource or any person incurs actual loss or damage or if the Board or Her Majesty in right of Canada or the Province reasonably incurs any costs or expenses in taking any action or measure in relation to debris,

    • (a) all persons to whose fault or negligence the debris is attributable or who are by law responsible for others to whose fault or negligence the debris is attributable are jointly and severally liable, to the extent determined according to the degree of the fault or negligence proved against them, for that loss, actual loss or damage, and for those costs and expenses; and

    • (b) the person who is required to obtain an authorization under paragraph 142(1)(b) in respect of the work or activity from which the debris originated is liable, without proof of fault or negligence, up to the applicable limit of liability that is set out in subsection (2.2), for that loss, actual loss or damage, and for those costs and expenses.

  • Marginal note:Vicarious liability for contractors

    (2.1) A person who is required to obtain an authorization under paragraph 142(1)(b) and who retains, to carry on a work or activity in respect of which the authorization is required, the services of a contractor to whom paragraph (1)(a) or (2)(a) applies is jointly and severally liable with that contractor for any actual loss or damage, costs and expenses and loss of non-use value described in subparagraphs (1)(a)(i) to (iii) and subsection (2).

  • Marginal note:Limit of liability

    (2.2) For the purposes of paragraphs (1)(b) and (2)(b), the limit of liability is $1 billion.

  • Marginal note:Increase in limit of liability

    (2.3) Subject to section 6, the Governor in Council may, by regulation, increase the amount referred to in subsection (2.2).

  • Marginal note:Liability under another law — paragraph (1)(b) or (2)(b)

    (2.4) If a person is liable under paragraph (1)(b) or (2)(b) with respect to an occurrence and the person is also liable under any other Act, without proof of fault or negligence, for the same occurrence, the person is liable up to the greater of the applicable limit of liability that is set out in subsection (2.2) and the limit up to which the person is liable under the other Act. If the other Act does not set out a limit of liability, the limits set out in subsection (2.2) do not apply.

  • Marginal note:Costs and expenses not recoverable under Fisheries Act

    (2.5) The costs and expenses that are recoverable by Her Majesty in right of Canada or the Province under this section are not recoverable under subsection 42(1) of the Fisheries Act.

  • Marginal note:Action — loss of non-use value

    (2.6) Only Her Majesty in right of Canada or the Province may bring an action to recover a loss of non-use value described in subsections (1) and (2).

  • Marginal note:Claims

    (3) All claims under this section may be sued for and recovered in any court of competent jurisdiction in Canada and shall rank, firstly, in favour of persons incurring actual loss or damage, described in subsections (1) and (2), without preference, secondly, without preference, to meet any costs and expenses described in those subsections and, lastly, to recover a loss of non-use value described in those subsections.

• (3) The portion of subsection 167(4) of the Act before paragraph (a) is replaced by the following:

  • Marginal note:Saving

    (4) Subject to subsections (2.5) and (2.6), nothing in this section suspends or limits

• (4) Subsection 167(5) of the French version of the Act is replaced by the following:

  • Marginal note:Prescription

    (5) Les poursuites en recouvrement de créances fondées sur le présent article se prescrivent par trois ans après la date des pertes, dommages ou frais et par six ans après la date des déversements, dégagements, écoulements ou rejets ou après la date où s’est manifestée la présence des débris.