Canadian Energy Regulator Act (S.C. 2019, c. 28, s. 10)

Marginal note:Orphan Pipelines Account

• 246 (1) There is established an account in the accounts of Canada to be called the Orphan Pipelines Account.

• Marginal note:Amounts credited to Account

  (2) If a pipeline is abandoned, the surplus determined in accordance with the formula set out in subsection (3) may be paid into the Consolidated Revenue Fund and credited to the Orphan Pipelines Account, if the Commission considers it appropriate.

• Marginal note:Calculation of surplus

  (3) The amount of the surplus is determined in accordance with the formula

  A − B

  where

  A

  is the amount of funds or security that a company has been ordered to maintain under subsection 242(1); and

  B

  is the total of all amounts that are both:

  • (a) the subject of an order made under paragraph 242(2)(a) or an authorization given under paragraph 242(2)(b) or realized under paragraph 242(2)(c), and

  • (b) they are used to pay for the abandonment of the pipeline or to pay the costs and expenses related to the abandoned pipeline.

• Marginal note:Interest to be credited to Account

  (3.1) On April 1 of every year there is to be credited to the Orphan Pipelines Account an amount representing interest, at the rate fixed for the purposes of subsection 21(2) of the Financial Administration Act, on the balance to the credit of the Account.

• Marginal note:Amounts payable out of Account

  (4) Any amounts required for the purpose of paying the costs and expenses of any action or measure taken under subsection 245(1) may be paid out of the Consolidated Revenue Fund and charged to the Orphan Pipelines Account if the Commission considers it appropriate and

  • (a) the funds or security referred to in subsection 242(1) are insufficient; or

  • (b) the company is not the subject of an order under subsection 242(1).

• Marginal note:Limit on payments

  (5) A payment must not be made out of the Consolidated Revenue Fund under subsection (4) in excess of the amount of the balance to the credit of the Account.

• Marginal note:Liability of company

  (6) A payment made out of the Orphan Pipelines Account in respect of a pipeline does not affect the liability under this Act of a company that has been granted leave to abandon a pipeline.

PART 4International and Interprovincial Power Lines

International Power Lines

Marginal note:Prohibition

247 A person must not construct or operate a section or part of an international power line except in accordance with a permit issued under section 248 or a certificate issued under section 262.

Permits

Marginal note:Issuance

• 248 (1) On application, the Commission must, subject to section 8 of the Impact Assessment Act, issue a permit authorizing the construction and operation of an international power line, except in the case of a power line that is designated by order of the Governor in Council under paragraph 258(1)(a) or in respect of which an election is made under section 259.

• Marginal note:Information

  (2) The application must be accompanied by the information that under the regulations is to be furnished in connection with the application.

Marginal note:Publication

• 249 (1) The applicant must cause to be published a notice of the application in the Canada Gazette and any other publications that the Commission considers appropriate.

• Marginal note:Waiver

  (2) The Commission may waive the requirement to publish the notice if it considers that there is a critical shortage of electricity caused by a terrorist activity, as defined in subsection 83.01(1) of the Criminal Code.

Location and Construction under Provincial Law

Marginal note:Provincial regulatory agency

250 The lieutenant governor in council of a province may designate as the provincial regulatory agency the lieutenant governor in council of the province, a provincial minister of the Crown or any other person or a board, commission or other tribunal.

Marginal note:Application

251 Sections 253 and 254 apply in respect of those parts of international power lines that are within a province in which a provincial regulatory agency is designated under section 250 but do not apply in the case of international power lines in respect of which an election is filed under section 259.

Marginal note:Laws of a province

252 For the purposes of sections 253 to 255, a law of a province is in relation to lines for the transmission of electricity from a place in the province to another place in that province if the law is in relation to any of the following matters:

• (a) the determination of their location or detailed route;

• (b) the acquisition, including by expropriation, or lease of land required for the purposes of those lines, the power to so acquire or lease land and the procedure for so acquiring or leasing it;

• (c) assessments of their impact on the environment;

• (d) the protection of the environment against the consequences of the construction, operation and abandonment of those lines, and the mitigation of their effects on the environment;

• (e) their construction and operation and the procedure to be followed in abandoning their operation.

Marginal note:Application of provincial laws

253 The laws in force in a province in relation to lines for the transmission of electricity from a place in the province to another place in that province apply in respect of parts of international power lines that are within that province.

Marginal note:Powers, duties and functions of provincial regulatory agency

254 A provincial regulatory agency designated under section 250 has, in respect of those parts of international power lines that are within that province, the powers, duties and functions that it has under the laws of the province in respect of lines for the transmission of electricity from a place in the province to another place in that province, including a power, duty or function to refuse to approve any matter or thing for which the approval of the agency is required, even though the result of the refusal is that the line cannot be constructed or operated.

Marginal note:Paramountcy

255 Conditions of permits and certificates and Acts of Parliament of general application are, for the purpose of applying the laws of a province under section 253 or 254, paramount to those laws.

Certificates

Designated International Power Lines

Marginal note:Further information

256 The Commission may, within a reasonable time after the publication of the notice referred to in section 249, require the applicant to furnish any information, in addition to that required to accompany the application, that the Commission considers necessary to determine whether to make a recommendation under section 257.

Marginal note:Recommendation and delay of issuance

• 257 (1) The Commission may make a recommendation to the Minister, which it must make public, that an international power line be designated by order of the Governor in Council under section 258, and may delay issuing a permit during the period that is necessary for the purpose of making the order.

• Marginal note:Criteria

  (2) In determining whether to make a recommendation, the Commission must seek to avoid the duplication of measures taken in respect of the international power line by the applicant and the government of any province through which the line is to pass, and must have regard to all considerations that appear to it to be relevant, including

  • (a) the effect of the power line on provinces other than those through which the line is to pass;

  • (b) the impact of the construction or operation of the power line on the environment; and

  • (c) any other considerations that may be specified in the regulations.

Marginal note:Where certificate required

• 258 (1) The Governor in Council may, by order,

  • (a) designate an international power line as an international power line that is to be constructed and operated in accordance with a certificate issued under section 262; and

  • (b) revoke any permit issued in respect of the line.

• Marginal note:Limitation

  (2) No order may be made under subsection (1) in respect of a power line more than 45 days after the issuance of a permit in respect of the line.

• Marginal note:Effect of order

  (3) If an order is made under subsection (1),

  • (a) no permit is to be issued in respect of the power line; and

  • (b) any application in respect of the line is to be dealt with as an application for a certificate.

Election — Application of this Act

Marginal note:Election by applicant or holder

259 The applicant for or holder of a permit or certificate may file with the Regulator, in the form prescribed by the regulations, an election that the provisions of this Act referred to in section 266 and not the laws of a province described in section 252 apply in respect of the existing or proposed international power line.

Marginal note:Effect of election

• 260 (1) If an election is filed under section 259,

  • (a) no permit is to be issued in respect of the power line;

  • (b) any application in respect of the line is to be dealt with as an application for a certificate; and

  • (c) any permit or certificate issued in respect of the line is revoked.

• Marginal note:Liability

  (2) An applicant for or holder of a permit or certificate who files an election under section 259 and who, at the time of the election, is proceeding under the laws of a province to acquire or lease land for the purpose of constructing or operating the international power line is liable to each person who has an interest in the land or, in Quebec, a right in the land, for all damages suffered and reasonable costs incurred in consequence of the abandonment of the acquisition or lease.

• Marginal note:Court of competent jurisdiction

  (3) An action for damages and costs referred to in subsection (2) may be brought in any court of competent jurisdiction in the province in which the land is situated.

Designated Interprovincial Power Lines

Marginal note:Where certificate required

• 261 (1) The Governor in Council may, by order,

  • (a) designate an interprovincial power line as an interprovincial power line that is to be constructed and operated in accordance with a certificate issued under section 262; and

  • (b) specify considerations to which the Commission must have regard in deciding whether to issue such a certificate.

• Marginal note:Prohibition

  (2) A person must not construct or operate any section or part of an interprovincial power line in respect of which an order made under subsection (1) is in force except in accordance with a certificate issued under section 262.

Issuance of Certificate

Marginal note:Issuance

• 262 (1) If the Commission is satisfied that the power line is and will be required by the present and future public convenience and necessity, the Commission may, subject to section 52 and to the approval of the Governor in Council, issue a certificate in respect of

  • (a) an international power line in relation to which an order made under section 258 is in force;

  • (b) an international power line in relation to which an election is filed under section 259; or

  • (c) an interprovincial power line in relation to which an order made under section 261 is in force.

• Marginal note:Factors to consider

  (2) In deciding whether to issue a certificate, the Commission must take into account — in light of, among other things, any Indigenous knowledge that has been provided to the Commission and scientific information and data — all considerations that appear to it to be relevant and directly related to the power line, including

  • (a) the environmental effects, including any cumulative environmental effects;

  • (b) the safety and security of persons and the protection of property and the environment;

  • (c) the health, social and economic effects, including with respect to the intersection of sex and gender with other identity factors;

  • (d) the interests and concerns of the Indigenous peoples of Canada, including with respect to their current use of lands and resources for traditional purposes;

  • (e) the effects on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982;

  • (f) the extent to which the effects of the power line hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change; and

  • (g) any relevant assessment referred to in section 92, 93 or 95 of the Impact Assessment Act.

• Marginal note:Revocation of permit

  (3) Any permit that is issued in respect of an international power line in relation to which an order made under section 258 is in force, and that was not revoked by the order, is revoked on the Commission’s deciding not to issue a certificate in respect of the power line.

• Marginal note:Time limit

  (4) The Commission must, within the time limit specified by the Lead Commissioner,

  • (a) decide that the certificate should be issued and recommend to the Minister that the Governor in Council approve the issuance of the certificate; or

  • (b) decide that no certificate is to be issued and dismiss the application in respect of the line.

• Marginal note:Maximum time limit

  (5) The specified time limit must be no longer than 300 days after the day on which the applicant has, in the Commission’s opinion, provided a complete application.

• Marginal note:Excluded period

  (6) In the circumstances prescribed by regulations made under section 291.1, the Lead Commissioner may specify that a period is to be excluded from the calculation of the time limit within which the Commission must make its decision. The Lead Commissioner must provide reasons for doing so.

• Marginal note:Extension

  (7) The Minister may, by order, grant one or more extensions of the time limit specified under subsection (4).

• Marginal note:Publication

  (8) The Commission must make public the time limit specified under subsection (4), any period that is excluded and the reasons for the exclusion and any extension of time granted under subsection (7).

• Marginal note:Time limit — Governor in Council

  (9) If a recommendation referred to in paragraph (4)(a) is made, the Governor in Council may, within 90 days after the day on which the Commission makes that recommendation or, in the case of a designated project, as defined in section 2 of the Impact Assessment Act, 90 days after the day on which the recommendations referred to in paragraph 37.1(1)(b) of that Act are posted on the Internet site referred to in section 105 of that Act, either approve the issuance of the certificate or refuse to approve its issuance. The Governor in Council may extend the time limit for doing so for any additional period or periods.

• Marginal note:Obligation of Commission

  (10) If the Governor in Council approves the issuance of the certificate, the Commission must, within seven days after the day on which the approval was given, issue the certificate.

• Marginal note:Continuation of jurisdiction and obligation

  (11) A failure by the Commission to comply with subsection (4) within the required time limit does not affect its jurisdiction to deal with the application or its obligation to make a decision as to whether a certificate should be issued or to dismiss the application, and anything done by it in relation to the application remains valid.

• Marginal note:Governor in Council’s power

  (12) Despite subsection (9), the Governor in Council may approve the issuance of the certificate or refuse to approve its issuance after the expiry of the time limit for doing so.