• 52. (1) The Act is amended by adding the following after section 138.2:

  Spill-treating Agent

  Marginal note:Net environmental benefit

  138.21 The Board shall not permit the use of a spill-treating agent in an authorization issued under paragraph 138(1)(b) unless the Board determines that the use of the spill-treating agent is likely to achieve a net environmental benefit.

• (2) Section 138.21 of the Act is replaced by the following:

  Marginal note:Net environmental benefit

  138.21 The Board shall not permit the use of a spill-treating agent in an authorization issued under paragraph 138(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.

Marginal note:1992, c. 35, s. 58

53. Section 138.3 of the Act and the heading before it are replaced by the following:

Marginal note:1992, c. 35, s. 63

• 54. (1) The portion of subsection 149(1) of the Act before paragraph (a) is replaced by the following:

  Marginal note:Governor in Council’s regulatory power

  • 149. (1) Subject to section 7, the Governor in Council may, for the purposes of safety, the protection of the environment, and accountability as well as for the production and conservation of petroleum resources, make regulations

• Marginal note:1992, c. 35, s. 63

  (2) Paragraph 149(1)(a) of the French version of the Act is replaced by the following:

  • a) définir pétrole et gaz pour l’application des sections I et II, installation et équipement pour l’application des articles 139.1 et 139.2 et grave pour l’application de l’article 165;

• (3) Subsection 149(1) of the Act is amended by adding the following after paragraph (b):

  • (b.1) concerning the measures to be taken in preparation for or in the case of a spill, as defined in subsection 160(1), including measures concerning the use of a spill-treating agent;

  • (b.2) concerning the process for the determination of net environmental benefit;

  • (b.3) concerning the variation or revocation of an approval referred to in paragraph 161.1(1)(b);

• (4) Subsection 149(1) of the Act is amended by striking out “and” at the end of paragraph (h) and by adding the following after that paragraph:

  • (h.1) establishing the requirements for a pooled fund for the purposes of subsection 163(1.01);

  • (h.2) concerning the circumstances under which the Board may make a recommendation for the purposes of subsection 163.1(1) and the information to be submitted with respect to that recommendation;

  • (h.3) concerning the creation, conservation and production of records; and

• (5) Section 149 of the Act is amended by adding the following after subsection (2):

  • Marginal note:Spill-treating agents

    (3) Regulations made under subsection (1) respecting a spill-treating agent shall, in addition to the requirements set out in section 7, be made on the recommendation of the Federal Minister and the Minister of the Environment.

55. The Act is amended by adding the following after section 149:

Marginal note:1992, c. 35, s. 65

56. Subsection 151.1(1) of the Act is replaced by the following:

Marginal note:1992, c. 35, s. 73(1); 2001, c. 26, s. 324(8)

57. Subsections 160(1) to (3) of the Act are replaced by the following:

• 58. (1) The Act is amended by adding the following after section 161:

  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) 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 161(3) or (4).

  • 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 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 161.1(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 161.1(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 161.1(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.

59. The Act is amended by adding the following after section 161.1:

Marginal note:1992, c. 35, s. 75(1)

• 60. (1) Paragraphs 162(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 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:1992, c. 35, ss. 75(2), (3)(E) and (4)

  (2) Subsections 162(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 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.

• (3) The portion of subsection 162(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 162(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.