Canada–Newfoundland and Labrador Atlantic Accord Implementation and Offshore Renewable Energy Management Act (S.C. 1987, c. 3)

Marginal note:Spill-treating agents

• 161.1 (1) The provisions referred to in Schedule 1 do not apply to the deposit of a spill-treating agent and those referred to in Schedule 2 do not apply in respect of any harm that is caused by the spill-treating agent or by the interaction between the spill-treating agent and the spilled oil, if

  • (a) the authorization issued under paragraph 138(1)(b) permits the use of the spill-treating agent;

  • (b) 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 purposes of subsection 161(3) or (4); and

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

• Marginal note:Clarification

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

• 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.

Marginal note:Canadian Environmental Protection Act, 1999

161.2 Section 123 and subsections 124(1) to (3) of the Canadian Environmental Protection Act, 1999 do not apply in respect of a spill-treating agent.

Marginal note:Fisheries Act — civil liability

161.3 For the purpose of section 42 of the Fisheries Act, if subsection 36(3) of that Act would have been contravened but for subsection 161.1(1),

• (a) subsection 36(3) of that Act is deemed to apply in respect of the deposit of the spill-treating agent;

• (b) the holder of the authorization referred to in paragraph 161.1(1)(a) is deemed to be the only person referred to in paragraph 42(1)(a) of that Act; and

• (c) those persons who caused or contributed to the spill are deemed to be the only persons referred to in paragraph 42(1)(b) of that Act.

Marginal note:Notice

161.4 The Federal Minister shall, as soon as possible after it is made, notify the Provincial Minister and the Regulator of the making of the list of spill-treating agents and any amendment to that list.

Marginal note:Scientific research

• 161.5 (1) For the purpose of a particular research project pertaining to the use of a spill-treating agent in mitigating the environmental impacts of a spill, the Minister of the Environment may authorize, and establish conditions for, the deposit of a spill-treating agent, oil or oil surrogate if the Federal Minister has obtained the Provincial Minister’s approval.

• Marginal note:Oil surrogate

  (2) The Minister of the Environment shall not authorize the deposit of an oil surrogate unless that Minister determines that the oil surrogate poses fewer safety, health or environmental risks than oil.

• Marginal note:Non-application

  (3) If the conditions set out in the authorization are met, the provisions referred to in section 161.2 and Schedules 1 and 2 do not apply in respect of the spill-treating agent, oil and oil surrogate required for the research project.

Marginal note:Recovery of loss, damage, costs or expenses

• 162 (1) Where any discharge, emission or escape of petroleum that is authorized by regulation, or any spill, occurs in any portion of the offshore area,

  • (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 Regulator or Her Majesty in right of Canada or the Province or any other person in taking any action or measure in relation to the spill or the authorized discharge, emission or escape of petroleum, and

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

  • (b) the person who is required to obtain an authorization under paragraph 138(1)(b) in respect of the work or activity from which the spill or the authorized discharge, emission or escape of petroleum emanated is liable, without proof of fault or negligence, up to the applicable limit of liability that is set out in subsection (2.2) for the actual loss or damage, the costs and expenses and the loss of non-use value described in subparagraphs (a)(i) to (iii).

• 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 Regulator or Her Majesty in right of Canada or the Province reasonably incurs any costs or expenses in taking any action or measure in relation to debris,

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

  • (b) the person who is required to obtain an authorization under paragraph 138(1)(b) in respect of the work or activity from which the debris originated is liable, without proof of fault or negligence, up to the applicable limit of liability that is set out in subsection (2.2), for that loss, actual loss or damage, and for those costs and expenses.

• Marginal note:Vicarious liability for contractors

  (2.1) A person who is required to obtain an authorization under paragraph 138(1)(b) and who retains, to carry on a work or activity in respect of which the authorization is required, the services of a contractor to whom paragraph (1)(a) or (2)(a) applies is jointly and severally liable with that contractor for any actual loss or damage, costs and expenses and loss of non-use value described in subparagraphs (1)(a)(i) to (iii) and subsection (2).

• Marginal note:Limits of liability

  (2.2) For the purposes of paragraphs (1)(b) and (2)(b), the limits of liability are

  • (a) in respect of any area of land or submarine area referred to in paragraph 6(1)(a) of the Arctic Waters Pollution Prevention Act, the amount by which $1 billion exceeds the amount prescribed under section 9 of that Act in respect of any activity or undertaking engaged in or carried on by any person described in paragraph 6(1)(a) of that Act; and

  • (b) in respect of any area to which this Act applies and to which paragraph (a) does not apply, the amount of $1 billion.

• Marginal note:Increase in limits of liability

  (2.3) Subject to section 7, the Governor in Council may, by regulation, increase the amounts referred to in subsection (2.2).

• 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 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.

• Marginal note:Saving

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

  • (a) any 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) any recourse, indemnity or relief available at law to a person who is liable under this section against any other person; or

  • (c) the operation of any applicable law or rule of law that is not inconsistent with this section.

• Marginal note:Limitation period

  (5) Proceedings in respect of claims under this section may be instituted within three years after the day when the loss, damage costs or expenses occurred but in no case after six years after the day the spill or the discharge, emission or escape of petroleum occurred or, in the case of debris, after the day the installation or structure in question was abandoned or the material in question broke away or was jettisoned or displaced.

Marginal note:Financial resources — certain activities

• 162.1 (1) An applicant for an authorization under paragraph 138(1)(b) for the drilling for or development or production of petroleum shall provide proof, in the prescribed form and manner, that it has the financial resources necessary to pay the greatest of the amounts of the limits of liability referred to in subsection 162(2.2) that apply to it. If the Regulator considers it necessary, it may determine a greater amount and require proof that the applicant has the financial resources to pay that greater amount.

• Marginal note:Financial resources — other activities

  (2) An applicant for an authorization under paragraph 138(1)(b) for any other work or activity shall provide proof, in the prescribed form and manner, that it has the financial resources necessary to pay an amount that is determined by the Regulator.

• Marginal note:Loss of non-use value not considered

  (3) When the Regulator determines an amount under subsection (1) or (2), the Regulator 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.

• Marginal note:Continuing obligation

  (4) The holder of an authorization under paragraph 138(1)(b) shall ensure that the proof referred to in subsections (1) and (2) remains in force for the duration of the work or activity in respect of which the authorization is issued.

• Marginal note:Extended obligation

  (5) The holder of an authorization under paragraph 138(1)(b) shall also ensure that the proof referred to in subsection (1) remains in force for a period of one year beginning on the day on which the Regulator notifies the holder that it has accepted a report submitted by the holder indicating that the last well in respect of which the authorization is issued is abandoned. The Regulator may reduce that period and may decide that the proof that is to remain in force during that period is proof that the holder has the financial resources necessary to pay an amount that is less than the amount referred to in subsection (1) and that is determined by the Regulator.

Marginal note:Financial responsibility

• 163 (1) An applicant for an authorization under paragraph 138(1)(b) shall provide proof of financial responsibility in the form of a letter of credit, guarantee or indemnity bond or in any other form satisfactory to the Regulator,

  • (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 Regulator 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 Regulator.

• Marginal note:Pooled fund

  (1.01) An applicant to which paragraph (1)(a) applies may, rather than provide proof of financial responsibility in the amount referred to in that paragraph, provide proof that it participates in a pooled fund that is established by the oil and gas industry, that is maintained at a minimum of $250 million and that meets any other requirements that are established by regulation.

• Marginal note:Increase in amount by regulation

  (1.02) Subject to section 7, the Governor in Council may, by regulation, increase the amount referred to in subsection (1.01).

• Marginal note:Continuing obligation

  (1.1) The holder of an authorization under paragraph 138(1)(b) shall ensure that the proof of financial responsibility referred to in subsection (1) or (1.01) remains in force for the duration of the work or activity in respect of which the authorization is issued.

• Marginal note:Extended obligation

  (1.2) The holder of an authorization under paragraph 138(1)(b) shall also ensure that the proof referred to in paragraph (1)(a) or subsection (1.01) remains in force for a period of one year beginning on the day on which the Regulator notifies the holder that it has accepted a report submitted by the holder indicating that the last well in respect of which the authorization is issued is abandoned. The Regulator may reduce that period and may decide — other than in the case of a holder that participates in a pooled fund — that the proof that is to remain in force during that period is for an amount that is less than the amount referred to in paragraph (1)(a) and that is determined by the Regulator.

• Marginal note:Payment of claims

  (2) The Regulator may require that moneys in an amount not exceeding the amount prescribed for any case or class of cases, or determined by the Regulator in the absence of regulations, be paid out of the funds available under the letter of credit, guarantee or indemnity bond or other form of financial responsibility provided under subsection (1), or be paid out of the pooled fund referred to in subsection (1.01), in respect of any claim for which proceedings may be instituted under section 162, whether or not those proceedings have been instituted.

• Marginal note:Manner of payment

  (3) Where payment is required under subsection (2), it shall be made in such manner, subject to such conditions and procedures and to or for the benefit of such persons or classes of persons as may be prescribed by the regulations for any case or class of cases, or as may be required by the Regulator in the absence of regulations.

• Marginal note:Deduction

  (4) Where a claim is sued for under section 162, there shall be deducted from any award made pursuant to the action on that claim any amount received by the claimant under this section in respect of the loss, damage, costs or expenses claimed.

• Marginal note:Reimbursement of pooled fund

  (5) The holder of an authorization under paragraph 138(1)(b) that is liable for a discharge, emission or escape of petroleum that is authorized by regulation or for any spill or debris in respect of which a payment has been made under subsection (2) out of the pooled fund, shall reimburse the amount of the payment in the prescribed manner.