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

Act current to 2022-09-22 and last amended on 2022-06-23. Previous Versions

PART 5Offshore Renewable Energy Projects and Offshore Power Lines (continued)

Authorizations (continued)

Marginal note:Impact Assessment Act

 If an application under section 298 relates to a designated project, as defined in section 2 of the Impact Assessment Act, that is subject to an impact assessment under that Act,

  • (a) despite the time limit established under subsections 298(4) and (5), the Commission must make its decision under subsection 298(4) within seven days after the day on which the decision statement with respect to the project is posted on the Internet under section 66 of that Act;

  • (b) the Commission must make its decision under subsection 298(4) solely on the basis of the report referred to in paragraph 51(1)(d) of that Act; and

  • (c) subsections 298(3) and (6) to (8) do not apply with respect to the application.

Marginal note:Variation or transfer

  •  (1) The Commission may, on application or on its own initiative, vary an authorization and may, on application, transfer an authorization.

  • Marginal note:Conditions

    (2) In varying or transferring an authorization, the Commission may impose any conditions in addition to or in lieu of any conditions to which the authorization was previously subject.

Marginal note:Suspension or revocation

  •  (1) The Commission may, by order, suspend or revoke an authorization if the holder applies for or consents to the suspension or revocation or the holder has contravened a condition of the authorization.

  • Marginal note:Notice

    (2) The Commission must not make an order under subsection (1) for a contravention unless the Commission provides the holder with notice of the alleged contravention and gives them an opportunity to be heard.

Liability and Financial Requirements

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

  •  (1) 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 Her Majesty in right of Canada or a 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, or solidarily, 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 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 determined under this section, for that loss, actual loss or damage and for those costs and expenses.

  • Marginal note:Vicarious liability for contractors

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

  • Marginal note:Limits of liability

    (3) For the purposes of paragraph (1)(b), the limits of liability are

    • (a) in respect of a work or activity in 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; or

    • (b) in respect of any other work or activity for which an authorization is required, the amount of $1 billion.

  • Marginal note:Lesser amount

    (4) The Minister may, by order and on the Commission’s recommendation, approve an amount that is less than the amount referred to in paragraph (3)(a) or (b) in respect of a person who is required to obtain an authorization.

  • Marginal note:Increase in limits of liability

    (5) The Governor in Council may, by regulation, on the recommendation of the Minister, increase the amounts referred to in subsection (3).

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

    (6) If a person is liable under paragraph (1)(b) with respect to an occurrence and the person is also liable under any other Act of Parliament, 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 determined under the applicable subsection of this section 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 determined under this section do not apply.

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

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

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

    (8) Only Her Majesty in right of Canada or a province may bring an action to recover a loss of non-use value described in subsection (1).

  • Marginal note:Claims

    (9) All claims under this section may be sued for and recovered in any court of competent jurisdiction in Canada. Claims in favour of persons incurring actual loss or damage described in subsection (1) are to be distributed pro rata and rank in priority over claims for costs and expenses described in that subsection, and the claims for costs and expenses rank in priority over claims to recover a loss of non-use value described in that subsection.

  • Marginal note:Saving

    (10) Subject to subsections (7) and (8), 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 Act 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 or prescription

    (11) Proceedings in respect of claims under this section may be instituted no later than the third anniversary of the day on which the loss, damage, costs or expenses occurred but in no case after the sixth anniversary of the day the facility, equipment or system in question was abandoned or the material in question broke away or was jettisoned or displaced.

  • Marginal note:Definition of actual loss or damage

    (12) In this section, actual loss or damage includes loss of income, including future income, and, with respect to any Indigenous peoples of Canada, loss of hunting, fishing and gathering opportunities. It does not include loss of income recoverable under subsection 42(3) of the Fisheries Act.

Marginal note:Financial resources

  •  (1) An applicant for an authorization must provide proof that the applicant has the financial resources necessary to pay an amount that is determined by the Commission. The proof must be in the form and manner that are prescribed by regulation or, in the absence of regulations, that are specified by the Regulator.

  • Marginal note:Loss of non-use value

    (2) In determining the amount, the Commission is not required to consider any potential loss of non-use value relating to a public resource that is affected as a result of debris.

  • Marginal note:Continuing obligation

    (3) The holder of the authorization must ensure that the proof referred to in subsection (1) remains in force for the duration of the work or activity in respect of which the authorization is issued.

Marginal note:Proof of financial responsibility

  •  (1) An applicant for an authorization must provide proof of financial responsibility in an amount that is determined by the Commission. The proof must be in the form of a letter of credit, guarantee or indemnity bond or in any other form satisfactory to the Regulator.

  • Marginal note:Continuing obligation

    (2) The holder of an authorization must ensure that the proof of financial responsibility remains in force for the duration of the work or activity in respect of which the authorization is issued.

  • Marginal note:Payment of claims

    (3) The Regulator may require that moneys in an amount of not more than the amount prescribed by regulation for any case or class of cases, or fixed 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 proof provided under subsection (1) in respect of any claim for which proceedings may be instituted under section 302, whether or not those proceedings have been instituted.

  • Marginal note:Manner of payment

    (4) A required payment must be made in the manner, subject to any conditions and procedures, and to or for the benefit of the persons or classes of persons that may be prescribed by regulation for any case or class of cases, or that may be required by the Regulator in the absence of regulations.

  • Marginal note:Deduction

    (5) If a claim is sued for under section 302, there must 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.

General Provisions

Marginal note:Application of provisions in Part 4

  •  (1) Sections 272 and 273, subsections 274(1) and (2), sections 275 and 276, and section 292 in respect of those provisions, apply in respect of an offshore power line as if each reference in any of those provisions to

    • (a) an international or interprovincial power line were a reference to an offshore power line; and

    • (b) a permit referred to in section 248 or a certificate were a reference to an authorization.

  • Marginal note:Application of subsection 273(2)

    (2) However, subsection 273(2) applies only in respect of any part of an offshore power line that is in a province.

Marginal note:Application of provisions in Part 6

  •  (1) Part 6, except sections 315 to 318, 335 and 342, applies in respect of any part of an offshore power line that is in a province as if each reference in any of those provisions to

    • (a) a company were a reference to the applicant for or holder of the authorization issued in respect of the power line;

    • (b) a pipeline or line were a reference to that part of the power line; and

    • (c) hydrocarbons or any other commodity were a reference to electricity.

  • Marginal note:Application of subsection 224(1)

    (2) Subsection 224(1) applies in respect of any part of an offshore power line that is in a province as if the reference to “any of the circumstances referred to in subsection (2)” were a reference to any of the following circumstances:

    • (a) leave has been obtained under subsection 272(2) or (5) in respect of that part;

    • (b) the authorization in respect of the power line contains a condition relating to the utility referred to in subsection 224(1);

    • (c) the power line has been constructed in circumstances specified in an order or regulation made under subsection 272(4).

  • Marginal note:Application of subsections 316(1) to (3)

    (3) Subsections 316(1) to (3) apply in respect of any part of an offshore power line that is in a province as if each reference in any of those provisions to

    • (a) a company were a reference to the holder of the authorization issued in respect of the power line; and

    • (b) a pipeline or line were a reference to that part of the power line.

  • Marginal note:Non-application of subsections 316(1) to (3)

    (4) Despite subsection (3), subsections 316(1) to (3) do not apply in respect of

    • (a) anything done under leave obtained under subsection 272(2) or (5) in respect of any part of an offshore power line that is in a province; and

    • (b) any such part that passes on, over, along or under a facility if an authorization has been issued in respect of the power line and the authorization contains a condition relating to that facility.

Marginal note:Application of sections 317 and 318

 Sections 317 and 318 apply in respect of an offshore renewable energy project or an offshore power line as if each reference in that section to

  • (a) a company were a reference to a person; and

  • (b) a pipeline were a reference to an offshore renewable energy project or offshore power line.

Marginal note:Limitations

 The holder of an authorization must not, unless the Commission has granted leave by order,

  • (a) sell or otherwise transfer to any person its offshore renewable energy project or offshore power line, in whole or in part;

  • (b) purchase or otherwise acquire an offshore renewable energy project or offshore power line from any person, in whole or in part;

  • (c) lease to any person its offshore power line or any facility, equipment or system related to its offshore renewable energy project, in whole or in part;

  • (d) lease from any person an offshore power line — or any facility, equipment or system related to an offshore renewable energy project — other than the one in respect of which the authorization is issued, in whole or in part; or

  • (e) if the holder is a company, amalgamate with another company.

Marginal note:Right of entry

  •  (1) Any person may enter on and use any portion of the offshore area in order to carry on a work or activity

    • (a) authorized under subsection 298(1); or

    • (b) authorized under section 101 in respect of an abandoned offshore power line or an abandoned facility, equipment or system that is in respect of an offshore renewable energy project.

  • Marginal note:Restriction

    (2) If a person occupies a portion of the offshore area under lawful authority, other than through an authorization, no other person is permitted to enter on and use that portion as set out in subsection (1) without the consent of the occupier or, if consent has been refused, except in accordance with the conditions imposed in an arbitration.

Marginal note:Study and report

 The Regulator may, by order, direct the holder of an authorization to study any safety or environmental protection issue that relates to their offshore renewable energy project or offshore power line and to report to the Regulator on the results within the period specified in the order.

Marginal note:Offence and punishment

  •  (1) Every person who contravenes section 297, a condition of an authorization imposed under subsection 298(9), an order made under section 310 or a provision of a regulation made under section 312 commits an offence and is liable

    • (a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than five years, or to both; or

    • (b) on summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both.

  • Marginal note:Application of subsections 379(2) to (6)

    (2) Subsections 379(2) to (6) apply, with any modifications that the circumstances require, in respect of an offence under this section.

 
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