Second Session, Forty-first Parliament,
62-63-64 Elizabeth II, 2013-2014-2015
STATUTES OF CANADA 2015CHAPTER 21
An Act to amend the National Energy Board Act and the Canada Oil and Gas Operations Act
ASSENTED TO
18th JUNE, 2015
BILL C-46
RECOMMENDATION
His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the National Energy Board Act and the Canada Oil and Gas Operations Act”.
SUMMARY
This enactment amends the National Energy Board Act and the Canada Oil and Gas Operations Act in order to strengthen the safety and security of pipelines regulated by those Acts.
More specifically, the enactment, among other things,
(a) reinforces the “polluter pays” principle;
(b) confirms that the liability of companies that operate pipelines is unlimited if an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline that they operate is the result of their fault or negligence;
(c) establishes the limit of liability without proof of fault or negligence at no less than one billion dollars for companies that operate pipelines that have the capacity to transport at least 250,000 barrels of oil per day and at an amount prescribed by regulation for companies that operate any other pipelines;
(d) requires that companies that operate pipelines maintain the financial resources necessary to pay the amount of the limit of liability that applies to them;
(e) authorizes the National Energy Board to order any company that operates a pipeline from which an unintended or uncontrolled release of oil, gas or any other commodity occurs to reimburse any government institution the costs it incurred in taking any action or measure in relation to that release;
(f) requires that companies that operate pipelines remain responsible for their abandoned pipelines;
(g) authorizes the National Energy Board to order companies that operate pipelines to maintain funds to pay for the abandonment of their pipelines or for their abandoned pipelines;
(h) allows the Governor in Council to authorize the National Energy Board to take, in certain circumstances, any action or measure that the National Energy Board considers necessary in relation to an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline;
(i) allows the Governor in Council to establish, in certain circumstances, a pipeline claims tribunal whose purpose is to examine and adjudicate the claims for compensation for compensable damage caused by an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline;
(j) authorizes, in certain circumstances, that funds may be paid out of the Consolidated Revenue Fund to pay the costs of taking the actions or measures that the National Energy Board considers necessary in relation to an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline, to pay the costs related to establishing a pipeline claims tribunal and to pay any amount of compensation that such a tribunal awards; and
(k) authorizes the National Energy Board to recover those funds from the company that operates the pipeline from which the release occurred and from companies that operate pipelines that transport a commodity of the same class as the one that was released.
Available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
62-63-64 ELIZABETH II
——————
CHAPTER 21
An Act to amend the National Energy Board Act and the Canada Oil and Gas Operations Act
[Assented to 18th June, 2015]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Short title
1. This Act may be cited as the Pipeline Safety Act.
R.S., c. N-7
NATIONAL ENERGY BOARD ACT
2. Section 2 of the National Energy Board Act is amended by adding the following in alphabetical order:
“abandoned pipeline”« pipeline abandonné »
“abandoned pipeline” means a pipeline the operation of which has been abandoned with the leave of the Board as required by paragraph 74(1)(d) and that remains in place;
“Aboriginal governing body”« corps dirigeant autochtone »
“Aboriginal governing body” means a council, government or other entity authorized to act on behalf of
(a) a band as defined in subsection 2(1) of the Indian Act, or
(b) a First Nation, an Aboriginal people or any Aboriginal organization that is a party to a land claims agreement or any other treaty, a self-government agreement or a settlement agreement;
“compensable damage”« dommages indemnisables »
“compensable damage” means the costs, losses and damages for which the Tribunal may award compensation;
“ground disturbance”« remuement du sol »
“ground disturbance” does not include a ground disturbance caused by
(a) any activity that is specified in the orders or regulations made under subsection 112(5),
(b) cultivation to a depth of less than 45 cm below the surface of the ground, or
(c) any other activity to a depth of less than 30 cm and that does not result in a reduction of the earth cover over the pipeline to a depth that is less than the cover provided when the pipeline was constructed;
“Tribunal”« Tribunal »
“Tribunal” means a pipeline claims tribunal established under subsection 48.18(1).
3. Subsection 3(3) of the Act is replaced by the following:
Reappointment
(3) A member appointed under subsection (2) is eligible to be reappointed to hold office during good behaviour for any term of seven years or less.
2012, c. 19, s. 71(2)
4. Subsection 6(2) of the Act is replaced by the following:
Chairperson’s duties
(2) The Chairperson is the chief executive officer of the Board. The Chairperson apportions work among the members, decides whether the Board sits in a panel, and assigns members to panels and a member to preside over each panel. The Chairperson also has supervision over and direction of the work of the Board’s staff.
1990, c. 7, s. 5
5. The portion of subsection 12(1.1) of the Act before paragraph (a) is replaced by the following:
Inquiry
(1.1) The Board may inquire into any accident involving a pipeline, abandoned pipeline, international power line or other facility the construction or operation of which is regulated by the Board and may, at the conclusion of the inquiry, make
1990, c. 7, s. 10
6. Subsection 21(2) of the Act is replaced by the following:
Variation of certificates, licences and permits
(2) The Board may vary a certificate, licence or permit but the variation of a certificate or licence, other than a variation changing the name of the holder of a certificate in respect of a pipeline or the name of the holder of a licence, is not effective until it is approved by the Governor in Council.
1990, c. 7, s. 10
7. Section 21.1 of the Act is replaced by the following:
Transfer of certificates and licences
21.1 (1) A transfer of a certificate or a licence is not effective until authorized by the Board.
Idem
(2) In authorizing the transfer of a certificate or licence, the Board may, with the approval of the Governor in Council, impose, in addition to or in lieu of any terms and conditions to which the certificate or licence was previously subject, any further or other terms and conditions that the Board considers necessary or desirable in order to give effect to the purposes and provisions of this Act.
1994, c. 10, s. 23
8. The heading before section 28.4 of the Act is replaced by the following:
Chief Conservation Officer and Chief Safety Officer
1994, c. 10, s. 23
9. (1) Subsection 28.4(1) of the Act is replaced by the following:
Application to appeals
28.4 (1) This section applies to appeals brought under section 21 or subsection 25(8) of the Canada Oil and Gas Operations Act by a person aggrieved by an order of the Chief Conservation Officer or by any action or measure taken or authorized or directed to be taken by that Officer, other than the referral of an order to the Board under subsection 58(5) of that Act.
1994, c. 10, s. 23
(2) Subsection 28.4(2) of the French version of the Act is replaced by the following:
Pouvoir de décision
(2) Après audition de la demande visée au présent article, l’Office peut soit infirmer, confirmer ou modifier l’arrêté ou la mesure du délégué à l’exploitation, soit ordonner d’entreprendre les travaux qu’il juge nécessaires pour empêcher le gaspillage ou le dégagement de pétrole ou de gaz ou pour prévenir toute contravention à la Loi sur les opérations pétrolières au Canada ou à ses règlements, soit rendre toute ordonnance qu’il juge indiquée.
1994, c. 10, s. 23
10. The heading before section 28.6 of the Act is repealed.
1994, c. 10, s. 23
11. Subsection 28.6(1) of the Act is replaced by the following:
Application
28.6 (1) This section applies to an order referred by the Chief Safety Officer or the Chief Conservation Officer to the Board under subsection 58(5) of the Canada Oil and Gas Operations Act.
1990, c. 7, s. 14
12. The heading “CONSTRUCTION AND OPERATION OF PIPELINES” before section 29 of the Act is replaced by the following:
CONSTRUCTION, OPERATION AND ABANDONMENT OF PIPELINES
13. Section 29 of the Act is amended by adding the following after subsection (3.1):
Successor or assign — abandoned pipeline
(4) For the purposes of this Act, a successor or assign of a company is deemed to be a company for any matter relating to an abandoned pipeline.
14. The heading before section 48 of the Act is replaced by the following:
Regulation of Construction, Operation and Abandonment
2004, c. 15, ss. 84(1) and (2)(E)
15. (1) Subsections 48(1.1) and (2) of the Act are replaced by the following:
Other measures
(1.1) The Board may order a company to take measures in respect of a pipeline or an abandoned pipeline that the Board considers necessary for
(a) the safety and security of the public, of the company’s employees or of the pipeline or the abandoned pipeline; or
(b) the protection of property or the environment.
Measures to be taken
(1.2) If a company does not comply with an order of the Board referred to in subsection (1.1) or an order of an inspection officer made under subsection 51.1(1), the Board or any of its officers or employees — or class of officers and employees — that the Board authorizes may take any action or measure that they consider necessary in relation to the abandonment of a pipeline by the company or in relation to the company’s abandoned pipeline, or they may authorize a third party to take any such action or measure.
No liability
(1.3) No action lies against the Board or an officer or employee of the Board or against Her Majesty in right of Canada or an employee of Her Majesty for anything done or omitted to be done in taking any action or measure referred to in subsection (1.2).
Third party liability
(1.4) A third party that is authorized under subsection (1.2) to take any action or measure referred to in that subsection is not liable in respect of any act or omission committed in taking those actions or measures unless it is shown that the third party did not act reasonably in the circumstances.
Regulations as to safety and security
(2) The Board may, with the Governor in Council’s approval, make regulations
(a) governing the design, construction, operation and abandonment of a pipeline;
(b) providing for the protection of property and the environment and the safety and security of the public and of the company’s employees in the design, construction, operation and abandonment of a pipeline; and
(c) governing abandoned pipelines.
(2) Section 48 of the Act is amended by adding the following after subsection (2.2):
Regulations — Governor in Council
(2.3) Without limiting the scope of the regulations that the Board may make under subsection (2), the Governor in Council may, on the Minister’s recommendation, make regulations
(a) specifying requirements with respect to monitoring pipelines; and
(b) respecting the actions or measures to be taken in preparation for or in the case of an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline.
16. The Act is amended by adding the following after section 48:
Abandoned pipelines
48.1 (1) No person shall, without the Board’s leave, make contact with, alter or remove an abandoned pipeline.
Terms
(2) The Board may, on granting an application for leave under this section, impose any terms that it considers proper.
Exception
(3) The Board may make orders or regulations governing the circumstances in which or conditions under which leave is not necessary.
Polluter Pays Principle
Purpose
48.11 The purpose of sections 48.12 to 48.17 is to reinforce the “polluter pays” principle by, among other things, imposing financial requirements on any company that is authorized under this Act to construct or operate a pipeline.
Liability
Recovery of loss, damage, costs, expenses
48.12 (1) If an unintended or uncontrolled release from a pipeline of oil, gas or any other commodity occurs, all persons to whose fault or negligence the release is attributable or who are by law responsible for others to whose fault or negligence the release is attributable are jointly and severally, or solidarily, liable for
(a) all actual loss or damage incurred by any person as a result of the release or as a result of any action or measure taken in relation to the release;
(b) the costs and expenses reasonably incurred by Her Majesty in right of Canada or a province, any Aboriginal governing body or any other person in taking any action or measure in relation to the release; and
(c) all loss of non-use value relating to a public resource that is affected by the release or by any action or measure taken in relation to the release.
Contribution based on degree of fault
(2) The persons who are at fault or negligent or who are by law responsible for persons who are at fault or negligent are liable to make contributions to each other or to indemnify each other in the degree to which they are respectively at fault or negligent.
Vicarious liability
(3) The company that is authorized under this Act to construct or operate the pipeline from which the release occurred is jointly and severally, or solidarily, liable with any contractor — to whose fault or negligence the release is attributable — that performs work for the company for the actual loss or damage, the costs and expenses and the loss of non-use value, described in paragraphs (1)(a) to (c).
Absolute liability
(4) If an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline occurs, the company that is authorized under this Act to construct or operate that pipeline is liable, without proof of fault or negligence, up to the applicable limit of liability that is set out in subsection (5) for the actual loss or damage, the costs and expenses and the loss of non-use value, described in paragraphs (1)(a) to (c).
Limits of liability
(5) For the purposes of subsection (4), the limits of liability are,
(a) in respect of a company that is authorized under this Act to construct or operate one or more pipelines that individually or in the aggregate have the capacity to transport at least 250,000 barrels of oil per day, one billion dollars or, if a greater amount is prescribed by the regulations, that amount; and
(b) in respect of a company that is authorized under this Act to construct or operate any other pipeline, the amount prescribed by the regulations.
Regulations — limits of liability
(6) The Governor in Council may, by regulation, on the Minister’s recommendation,
(a) prescribe an amount greater than one billion dollars for the purposes of paragraph (5)(a); and
(b) prescribe an amount for the purposes of paragraph (5)(b) in respect of a company or class of companies.
Liability under another law — subsection (4)
(7) If a company is liable under subsection (4) with respect to a release and it is also liable under any other Act, without proof of fault or negligence, for that release, the company is liable up to the greater of the limit of liability referred to in subsection (5) that applies to it and the limit up to which it is liable under the other Act. If the other Act does not set out a limit of liability, the limits referred to in subsection (5) do not apply.
Costs and expenses not recoverable under Fisheries Act
(8) 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.
Proceedings — loss of non-use value
(9) Only Her Majesty in right of Canada or a province may institute proceedings to recover a loss of non-use value described in paragraph (1)(c).
Claims
(10) 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 paragraph (1)(a), without preference, secondly, to meet the costs and expenses described in paragraph (1)(b), and, lastly, to recover a loss of non-use value described in paragraph (1)(c).
Saving
(11) Subject to subsections (8) and (9), 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 consistent with this section.
Limitation period or prescription
(12) Proceedings in respect of claims under this section may be instituted within three years from the day on which the loss, damage or costs and expenses were incurred but in no case after six years from the day on which the release occurred.
Financial Requirements
Financial resources
48.13 (1) A company that is authorized under this Act to construct or operate a pipeline shall maintain the amount of financial resources necessary to pay the amount of the limit of liability referred to in subsection 48.12(5) that applies to it or, if the Board specifies a greater amount, that amount.
Types of financial resources
(2) The Board may, subject to the regulations made under subsection (7), order a company, either individually or as a member of a class of companies authorized under this Act to construct or operate a pipeline, to maintain the amount of financial resources that is referred to in subsection (1) in the types that the Board specifies, including types that shall be readily accessible to the company and, if the Board specifies types of financial resources, it may specify the amount that the company is required to maintain under each type.
Duty to satisfy Board
(3) At the Board’s request, the company shall satisfy the Board that it meets the requirement to maintain the amount of financial resources referred to in subsection (1) and that it complies with any order made under subsection (2). The Board may consider, among other things, the company’s financial statements, letters of credit, guarantees, bonds or suretyships and insurance.
Greater amount
(4) The Board may, by order, specify an amount for the purposes of subsection (1).
Loss of non-use value
(5) When the Board specifies an amount for the purposes of subsection (1), it is not required to consider any potential loss of non-use value relating to a public resource that is affected by an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline or by any action or measure taken in relation to the release.
Continuing obligation
(6) A company that is authorized under this Act to construct or operate a pipeline shall maintain the amount of financial resources referred to in subsection (1) and shall comply with any order made under subsection (2) and any regulation made under subsection (7) only until it obtains leave from the Board to abandon the operation of its pipeline.
Regulations
(7) The Governor in Council may, on the Minister’s recommendation, make regulations
(a) providing for the types of financial resources from which the Board may choose if it specifies types of financial resources under subsection (2), including those from which the Board may choose if it specifies types of financial resources that shall be readily accessible to the company; and
(b) respecting the amount of financial resources that shall be readily accessible to a company individually or as a member of a class of companies.
Pooled fund
48.14 (1) Subject to subsection (2), a company may meet all or a portion of its financial requirements under subsection 48.13(1) by participating in a pooled fund that is established by companies which are authorized under this Act to construct or operate a pipeline, that meets the requirements established by the regulations and from which the Board may withdraw any amount under subsection 48.16(6).
Difference
(2) If a company meets only a portion of its financial requirements by participating in a pooled fund and the amount of funds in the pooled fund to which it has access — in the event that there is an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline that the company is authorized under this Act to construct or operate — is less than the amount of financial resources referred to in subsection 48.13(1), the company shall maintain an amount equal to the difference between those amounts.
Regulations
(3) The Governor in Council may, on the Minister’s recommendation, make regulations respecting a pooled fund referred to in subsection (1), including regulations
(a) specifying the minimum amount of the pooled fund and the minimum amount of the pooled fund that shall be readily accessible;
(b) specifying any condition that a company shall meet in order to participate in the pooled fund, including the minimum amount that a company shall contribute to the pooled fund;
(c) specifying the maximum amount that a company may withdraw from the pooled fund; and
(d) specifying the maximum portion of a company’s financial requirements that may be met by participating in the pooled fund.
Reimbursement by Company
Reimbursement — measures taken by government institution
48.15 If an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline occurs, the Board may order the company that is authorized under this Act to construct or operate that pipeline to reimburse any federal, provincial or municipal government institution, any Aboriginal governing body or any person the costs and expenses that the Board considers reasonable that they incurred in taking any reasonable action or measure in relation to the release even if the costs and expenses are more than the amount of the limit of liability referred to in subsection 48.12(5) that applies to that company.
Designated Company
Designation
48.16 (1) The Governor in Council may, on the Minister’s recommendation, designate any company that is authorized under this Act to construct or operate a pipeline from which an unintended or uncontrolled release of oil, gas or any other commodity has occurred if
(a) the Governor in Council is of the opinion that the company does not have or is not likely to have the financial resources necessary to pay
(i) the costs and expenses incurred, or to be incurred, in taking any action or measure in relation to the release, and
(ii) the compensation that might be awarded for compensable damage caused by the release; or
(b) the company does not comply with an order of the Board with respect to any action or measure to be taken in relation to the release.
Measures to be taken
(2) If the Governor in Council designates a company under subsection (1), the Board or any of its officers or employees — or class of officers or employees — that the Board authorizes may take any action or measure that they consider necessary in relation to the release or they may authorize a third party to take any such action or measure.
No liability
(3) No action lies against the Board or an officer or employee of the Board or against Her Majesty in right of Canada or an employee of Her Majesty for anything done or omitted to be done in taking any action or measure in relation to the release.
Third party liability
(4) A third party that is authorized under subsection (2) to take any action or measure referred to in that subsection is not liable in respect of any act or omission committed in taking those actions or measures unless it is shown that the third party did not act reasonably in the circumstances.
Reimbursement — measures taken by government institution
(5) If the Governor in Council designates a company under subsection (1), the Board may reimburse any federal, provincial or munic- ipal government institution, any Aboriginal governing body or any person the costs and expenses that the Board considers reasonable that they incurred in taking any reasonable action or measure in relation to the release.
Withdrawal from pooled fund
(6) If the Governor in Council designates a company under subsection (1) and that company participates in a pooled fund described in subsection 48.14(1), the Board may withdraw any amount from the pooled fund that is necessary to pay the costs and expenses incurred in taking any action or measure under subsection (2) and to reimburse the costs and expenses referred to in subsection (5).
Regulations imposing fees, etc.
48.17 (1) Subject to the Treasury Board’s approval, the Board shall, for the purposes of recovering the amounts paid out of the Consolidated Revenue Fund under subsection 48.46(1), even if those amounts are more than the amount of the limit of liability referred to in subsection 48.12(5) that applies to a designated company, make regulations
(a) imposing fees, levies or charges on a designated company and companies that are authorized under this Act to construct or operate pipelines that transport the same commodity or a commodity of the same class as the commodity that was released from a pipeline constructed or operated by the designated company; and
(b) prescribing the manner of calculating the fees, levies and charges and their payment to the Board.
Interest on late payments
(2) A regulation made under subsection (1) may specify the rate of interest or the manner of calculating the rate of interest payable by a company either individually or as a member of a class of companies on any fee, levy or charge not paid by the company on or before the date it is due and the time from which interest is payable.
Debt due to Her Majesty
(3) Fees, levies or charges imposed under this section and any interest payable on them constitute a debt that is due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.
Pipeline Claims Tribunal
Establishment
Establishment of Tribunal
48.18 (1) The Governor in Council may, by order, after a designation is made under subsection 48.16(1), establish a pipeline claims tribunal whose purpose is to examine and adjudicate, as expeditiously as the circumstances and considerations of fairness permit, the claims for compensation made under this Act in relation to the release that occurred from the designated company’s pipeline and specify the location of its head office.
Reasons
(2) However, the Governor in Council may establish a pipeline claims tribunal only if, having regard to the extent of the compensable damage caused by the release, the estimated cost of paying compensation in respect of that damage and the advantages of having claims dealt with by an administrative tribunal, the Governor in Council is of the opinion that it is in the public interest to do so.
Claims treated equitably
(3) A Tribunal shall exercise its powers and perform its duties and functions with respect to claims for compensation in an equitable manner, without discrimination on the basis of nationality or residence.
Jurisdiction of courts
48.19 For greater certainty, nothing in sections 48.18 and 48.2 to 48.48 is to be construed as restricting the jurisdiction of a court of competent jurisdiction with respect to the release referred to in subsection 48.18(1).
Public notice
48.2 Immediately after a Tribunal is established, the Board shall notify the public, in a manner that the Tribunal considers appropriate, of the Tribunal’s purpose and the manner in which to obtain information on making a claim for compensation and shall publish in the Canada Gazette a notice setting out that purpose and the manner in which to obtain that information.
Members of Tribunal
48.21 (1) A Tribunal consists of at least three members, each of whom is to be appointed by the Governor in Council, on the Minister’s recommendation, to hold office for a term of not more than five years.
Members’ qualifications
(2) The members of the Tribunal are to be appointed from among persons who are retired judges of a superior court or members of at least 10 years standing at either the bar of a province or the Chambre des notaires du Québec.
Replacing member
(3) If a member is absent or becomes incapacitated, resigns or dies, the Governor in Council may appoint a replacement for that member.
Remuneration
(4) The Board shall pay the members the remuneration and expenses that are fixed by the Governor in Council.
Tenure
48.22 (1) Each member of a Tribunal shall hold office during good behaviour, but may be removed by the Governor in Council for cause.
Termination of Tribunal
(2) The Governor in Council may terminate the appointment of the members of the Tribunal if the Governor in Council is satisfied that the Tribunal has no work to carry out.
Immunity
48.23 No action lies against any member of a Tribunal for anything done or omitted to be done by the member in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the Tribunal.
Chairperson and Staff
Chairperson
48.24 (1) The Governor in Council shall, on the Minister’s recommendation, designate one of the members of a Tribunal to be the Chairperson of the Tribunal.
Chairperson’s powers, duties and functions
(2) The Chairperson apportions work among the members of the Tribunal and, if he or she establishes a panel, assigns members to the panel and designates a member to preside over it. The Chairperson also has supervision over and direction of the work of the Tribunal’s staff.
Tribunal staff
48.25 A Tribunal may employ the staff that it considers necessary for the proper exercise of its powers and performance of its duties and functions, prescribe their duties and, subject to any regulations, their terms and conditions of employment and, with the Treasury Board’s approval, fix their remuneration.
Technical or specialized knowledge
48.26 A Tribunal may engage, on a tempo-rary basis, the services of counsel or notaries and other persons having technical or special­ized knowledge to assist it in its work, prescribe their duties and the terms and conditions of their employment and, with the Treasury Board’s approval, fix their remuneration and expenses.
Payment by Board
48.27 The Board shall pay the remuneration and expenses referred to in sections 48.25 and 48.26.
Staff and facilities
48.28 The Board shall provide a Tribunal with any professional, technical, secretarial, clerical and other assistance and any facilities and supplies that, in the Board’s opinion, are necessary to enable the Tribunal to exercise its powers and perform its duties and functions.
Tribunal’s Powers, Duties and Functions
Hearings
48.29 A Tribunal shall conduct its hearings in Canada at the times and locations that it considers appropriate.
Powers — witnesses and documents
48.3 (1) A Tribunal has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters that are necessary or proper for the exercise of its jurisdiction, all of the powers, rights and privileges that are vested in a superior court.
Evidence at hearings
(2) The Tribunal is not, in the hearing of any matter, bound by the legal rules of evidence; however, it shall not receive as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.
Examinations
48.31 For the purposes of adjudicating a claim for compensation or an application for reconsideration, a Tribunal may require a claimant or applicant to undergo medical or other examinations that are, in the Tribunal’s opinion, reasonably necessary.
Frivolous or vexatious claims
48.32 A Tribunal may refuse to hear any claim for compensation or application for reconsideration that it considers to be frivolous or vexatious.
Written submissions
48.33 A Tribunal may examine and adjudicate claims for compensation or application for reconsideration based only on written submissions.
Rules
48.34 A Tribunal may make the rules that it considers necessary for the exercise of its powers and the performance of its duties and functions, including rules respecting
(a) procedures for making a claim for compensation and those for making an application for reconsideration;
(b) the information that shall be included with a claim for compensation or an application for reconsideration;
(c) the conduct of its examination of claims for compensation and applications for reconsideration, including the conduct of its hearings;
(d) the form and manner in which evidence shall be submitted; and
(e) a quorum.
Claims for Compensation
Application
48.35 (1) Any person, partnership or unincorporated organization or federal, provincial or municipal government or any Aboriginal governing body may, within the prescribed period, make to a Tribunal a claim for compensation for compensable damage caused by the release that occurred from a designated company’s pipeline.
Panel
(2) As soon as feasible after the day on which the claim is made, the Chairperson shall
(a) assign the claim to the Tribunal;
(b) establish a panel of the Tribunal and assign the claim to that panel; or
(c) assign the claim to an existing panel.
Notice
(3) The Chairperson shall notify the claim-ant, the designated company and the Board that the claim has been assigned.
Powers and duties
(4) A panel has the powers, other than the power described in section 48.34, and the duties and functions of the Tribunal with respect to any claim for compensation that is before that panel.
Public hearings
48.36 Tribunal hearings are to be held in public. However, a Tribunal may hold all or part of a hearing in private if, in its opinion,
(a) a public hearing would not be in the public interest;
(b) a person’s privacy interest outweighs the principle that hearings be open to the public; or
(c) confidential business information may be disclosed.
Interim award of compensation
48.37 If it is authorized to do so by the regulations, a Tribunal may award interim compensation in respect of a claim for compensation. If the Tribunal awards interim compensation, it shall advise the Board, by notice, of the amount awarded.
Determining compensation
48.38 (1) A Tribunal shall decide whether to award a claimant compensation for the compensable damage that is referred to in their claim for compensation. If it decides to award compensation, it shall, having regard to any other amount of compensation that the claimant has been paid for that damage, determine the amount of compensation in accordance with the regulations and, if it is authorized by the regulations to award costs with respect to a claimant’s claim for compensation and it decides to do so, it shall determine the amount of those costs.
Notice — decision
(2) The Tribunal shall advise the claimant and the designated company, by notice, of its decision with respect to the claim for compensation, and if compensation or costs are awarded, it shall also advise the Board by that notice.
Content of notice
(3) The notice shall indicate
(a) the amount of any compensation or costs determined under subsection (1);
(b) any reduction in the amount of compensation provided for by the regulations; and
(c) any amounts that have already been paid to the claimant for the compensable damage that is referred to in their claim.
Payment by the Board
Amount to be paid
48.39 (1) The Board shall, subject to section 48.4 and within the prescribed period, pay to the claimant
(a) the amount of interim compensation indicated in the notice referred to in section 48.37;
(b) subject to the regulations, the amount of compensation and costs indicated in the notice referred to in subsection 48.38(2) and any interest payable on that compensation; and
(c) if the amount of compensation and costs indicated in the notice referred to in subsection 48.44(2) is more than the amount paid by the Board under paragraph (b), subject to the regulations, an amount equal to the difference between those amounts.
Interest on claim
(2) If the regulations provide for interest with respect to a claim for compensation, the interest accrues at the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act that are in effect from time to time.
Fees and travel expenses
(3) If it is authorized to do so by the regulations, a Tribunal may, in accordance with the regulations, award fees and travel expenses. If the Tribunal awards fees and travel expenses, it shall advise the Board, by notice, of the amount awarded and the Board shall pay that amount.
Total amount
48.4 The total amount that the Board pays under subsection 48.39(1) shall not be more than the portion established by the Minister of Finance under subsection 48.46(2).
Recovery of overpayment
48.41 The following are debts that are due to Her Majesty in right of Canada and may be recovered in accordance with section 155 of the Financial Administration Act:
(a) any overpayment to a claimant by the Board under subsection 48.39(1);
(b) any amount paid to a claimant under paragraph 48.39(1)(b) in respect of a Tribunal’s decision that is rescinded; and
(c) if the amount paid by the Board under paragraph 48.39(1)(b) in respect of a Tribunal’s decision that is amended under subsection 48.44(1) is more than the amount of compensation and costs indicated in the notice referred to in subsection 48.44(2), the amount that is equal to the difference between those amounts.
Report
48.42 Three months after the day on which a Tribunal is established, and every three months after that, the Board shall submit to the Minister and the Minister of Finance a report with respect to the amount of compensation and costs awarded by the Tribunal and the amount that the Board has paid under subsections 48.39(1) and (3).
Reconsideration
Reconsideration
48.43 (1) A Tribunal may, on its own motion or on the application of a claimant, reconsider its decision with respect to a claim for compensation and may either confirm the decision or amend or rescind the decision if the Chairperson is of the opinion that because of extraordinary factors a reconsideration of the decision outweighs the public interest in the finality of decisions of the Tribunal.
Notice
(2) The Chairperson shall notify the applicant, the designated company and the Board that the Tribunal or a panel of the Tribunal will reconsider its decision.
Determining compensation
48.44 (1) If, on reconsideration, a Tribunal decides to amend its decision, it shall decide whether to award the claimant compensation for the compensable damage that is referred to in their claim for compensation. If it decides to award compensation, it shall, having regard to any other amount of compensation that the applicant has been paid for that dam- age, determine the amount of compensation in accordance with the regulations and, if it is authorized by the regulations to award costs with respect to a claimant’s claim for compensation or the reconsideration of that claim and it decides to do so, it shall determine the amount of those costs.
Notice — decision
(2) The Tribunal shall advise the applicant, the designated company and the Board, by notice, of its decision with respect to the application for reconsideration.
Content of notice
(3) If the decision is amended, the notice shall indicate
(a) the amount of any compensation or costs determined under subsection (1);
(b) any reduction in the amount of compensation provided for by the regulations; and
(c) any amounts that have already been paid with respect to the claim in accordance with this Act.
Judicial Review
Grounds
48.45 Subject to section 48.43, every decision of a Tribunal is final and conclusive and is not to be questioned or reviewed in any court except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
Appropriation and Repayment
Amount paid out of Fund
48.46 (1) There may be paid out of the Consolidated Revenue Fund, from time to time, any amount established by the Minister of Finance, on the Minister’s recommendation,
(a) to pay the costs and expenses incurred in taking any actions or measures referred to in subsection 48.16(2);
(b) to reimburse the costs and expenses referred to in subsection 48.16(5);
(c) to pay the costs of publishing the notice referred to in section 48.2;
(d) to pay the remuneration and expenses of a Tribunal’s members;
(e) to pay the remuneration of a Tribunal’s staff;
(f) to pay the remuneration and expenses of the counsel or notaries and other persons referred to in section 48.26;
(g) to pay the costs of providing a Tribunal with any of the assistance, facilities or supplies referred to in section 48.28;
(h) to pay the amounts that the Board shall pay under subsection 48.39(1); and
(i) to pay the fees and travel expenses referred to in paragraph 48.39(3).
Amount appropriated for compensation
(2) The Minister of Finance may, by order, after consultation with the Minister, establish the portion of the amount paid out under subsection (1) that may be used solely to pay the amounts referred to in paragraph (1)(h).
Publication
(3) The Minister shall, without delay, publish in the Canada Gazette a notice setting out the portion established by the Minister of Finance.
Repayment
(4) The Board shall deposit the amounts paid out under subsection (1) to the credit of the Receiver General in accordance with the terms and conditions established by the Minister of Finance.
Regulations
Regulations — Tribunal
48.47 The Governor in Council may make regulations respecting a Tribunal, including regulations
(a) prescribing the terms and conditions of appointment of its members;
(b) respecting conflict of interest;
(c) prescribing the Chairperson’s powers, duties and functions;
(d) respecting the absence or incapacity of the Chairperson or another member;
(e) respecting the effects of replacing a member of the Tribunal, including on
(i) evidence and representations received by the Tribunal, or a panel of the Tribunal on which the member was sitting, before the replacement was appointed,
(ii) decisions made by the Tribunal or the panel before the replacement was appointed;
(f) respecting the hiring and terms and conditions of employment of the Tribunal’s staff; and
(g) generally, to enable the Tribunal to exercise its powers and perform it duties and functions.
Regulations — compensation
48.48 (1) The Governor in Council may make regulations establishing the costs, losses and damages for which a Tribunal may award compensation and regulations respecting that compensation, including regulations
(a) prescribing the period within which claims for compensation or applications for reconsideration shall be made to the Tribunal;
(b) authorizing the Tribunal to award interim compensation in respect of a claim for compensation;
(c) authorizing the Tribunal to award fees and travel expenses and costs with respect to claims for compensation and the reconsideration of those claims, as well as providing to whom the fees and travel expenses and costs may be awarded;
(d) establishing an order of priority among classes of compensable damage for the purpose of awarding compensation;
(e) providing for the reduction of the amount that the Board pays under subsection 48.39(1) and the criteria for such a reduction, including in respect of a class of compensable damage;
(f) fixing a maximum amount of compensation that may be awarded to a claimant, including in respect of a class of compensable damage;
(g) prescribing the period for the purposes of subsection 48.39(1);
(h) providing that a payment of any amount that the Board pays under subsection 48.39(1) be postponed;
(i) providing for the payment of any amount that the Board pays under subsection 48.39(1) in a lump sum or in payments of equal or different amounts over a period of time; 
(j) providing for interest with respect to a claim for compensation or an application for reconsideration, as well as the period during which interest accrues; and
(k) generally, for carrying out the purposes of sections 48.18 to 48.48.
Exception
(2) A regulation made under subsection (1) is not to provide that the loss of non-use value in relation to damages to the environment caused by the release is a loss for which the Tribunal may award compensation.
Measures Related to Abandonment
Costs and expenses related to abandonment
48.49 (1) The Board may order a company to take any measure, including maintaining funds or security, that the Board considers necessary to ensure that the company has the ability to pay for the abandonment of its pipelines and any costs and expenses related to its abandoned pipelines.
Funds or security
(2) If the Board orders a company to maintain funds or security, the Board may
(a) order the company to use the funds or security to pay for the abandonment of its pipelines or the costs and expenses related to its abandoned pipelines; or
(b) withdraw the funds or realize the security to pay for that abandonment or pay those costs and expenses.
1994, c. 10, s. 25(E); 2004, c. 15, s. 85
17. (1) Paragraphs 49(1)(b.1) to (d) of the Act are replaced by the following:
(b.1) the safety and security of pipelines and abandoned pipelines;
(c) compliance with this Part and Part III.1, any orders made, or permits and certificates issued, by the Board under those Parts and any regulations made under section 48; and
(d) compliance with section 112 and any orders and regulations made under section 58.33 or 112.
1994, c. 10, s. 25
(2) Subparagraphs 49(2)(a)(i) and (ii) of the Act are replaced by the following:
(i) any lands or pipeline, including a pipeline that is under construction, or any abandoned pipeline,
(ii) any ground disturbance within the area prescribed under subsection 112(5), and
1994, c. 10, s. 25
(3) Paragraphs 49(2)(b) and (c) of the Act are replaced by the following:
(b) direct a company or person whose activity causes a ground disturbance or who is constructing a facility described in paragraph (a)
(i) to perform any tests that the inspection officer considers necessary for an inspection, and
(ii) to provide information orally or in writing; and
(c) examine and make copies of any information contained in any books, records or documents, or in any computer systems, that the inspector believes on reasonable grounds contain any information relating to the design, construction, operation, maintenance or abandonment of a pipeline or to the maintenance of an abandoned pipeline.
(4) Section 49 of the Act is amended by adding the following after subsection (2):
Compliance audit
(3) For greater certainty, the powers set out in subsection (2) include the power to conduct a compliance audit.
1994, c. 10, s. 25; 2004, c. 25, s. 150(E)
18. Section 51 of the Act is replaced by the following:
Assistance to officers
51. Any officer, employee, agent or mandatary of a company and any person whose activity causes a ground disturbance or who is constructing a facility described in paragraph 49(2)(a) shall give an inspection officer all reasonable assistance to enable the officer to carry out their duties under this Part.
1994, c. 10, s. 25
19. (1) Subsection 51.1(1) of the Act is amended by striking out “or” at the end of paragraph (a) and by replacing paragraph (b) with the following:
(a.1) an abandoned pipeline or any part of it; or
(b) a ground disturbance or the construction of a facility described in paragraph 49(2)(a).
1994, c. 10, s. 25
(2) The portion of paragraph 51.1(2)(a) of the Act before subparagraph (i) is replaced by the following:
(a) work associated with the pipeline, abandoned pipeline, ground disturbance or facility to be suspended until
1994, c. 10, s. 25; 2004, c. 15, s. 86(2)(E)
(3) Paragraph 51.1(2)(b) of the Act is replaced by the following:
(b) the company, any person taking any action or measure with respect to the pipeline or the abandoned pipeline, any person responsible for the ground disturbance or any person involved in the construction of the facility to take any measure specified in the order to ensure the safety or security of the public or of employees of the company or to protect property or the environment.
2012, c. 19, s. 86
20. The portion of subsection 58.27(1) of the Act before paragraph (b) is replaced by the following:
Application of certain provisions
58.27 (1) Sections 32 to 45 and 48 to 51.3 and Part V, except sections 74, 76 to 78, 108 to 111.3, 112, 114 and 115, apply in respect of international and interprovincial power lines referred to in section 58.24 as if each reference in any of those provisions to
(a) a “company” were a reference to the applicant for or holder of the permit or certificate issued in respect of the line;
2012, c. 19, s. 86
21. The portion of section 58.271 of the Act before paragraph (b) is replaced by the following:
Application of certain provisions
58.271 Sections 32 to 45 and 48 to 51.3 and Part V, except sections 74, 76 to 78, 108 to 111.3, 112, 114 and 115, apply in respect of international power lines in respect of which a certificate was issued before June 1, 1990, or an order was made under subsection 58(2) as that subsection read before that date, as if each reference in any of those provisions to
(a) a “company” were a reference to the applicant for or holder of the certificate issued in respect of the line or the person who operates the line in respect of which the order was made;
22. The Act is amended by adding the following after section 58.271:
Exception
58.272 For the purposes of sections 58.27 and 58.271, in the provisions referred to in those sections, a reference to an “abandoned pipeline” is not a reference to an abandoned international or interprovincial power line.
23. The Act is amended by adding the following after section 58.33:
Temporary prohibition on excavating
58.331 (1) Without limiting the generality of paragraph 58.33(c), orders or regulations made under that paragraph may provide for the prohibition of excavations in an area that may extend beyond 30 m of an international or interprovincial power line during the period that starts on the day on which a request to locate the line is made to the holder of the permit or certificate issued in respect of the line and ends
(a) at the end of the third working day after the day on which the request is made; or
(b) at any later time that is agreed to between the holder and the person making the request.
Exemptions
(2) The Board may, by order made on any terms and conditions that the Board considers appropriate, exempt any person from the application of an order or regulation made under section 58.33.
Inspection officers
(3) The provisions of sections 49 to 51.3 relating to inspection officers apply for the purpose of ensuring compliance with section 58.31 and orders and regulations made under section 58.33 as if each reference in any of those provisions to
(a) a “pipeline” were a reference to an international or interprovincial power line;
(b) a “company” were a reference to the holder of a permit or certificate issued in respect of an international or interprovincial power line or the person who operates an international or interprovincial power line in respect of which an order was made under subsection 58(2) as that section read before June 1, 1990;
(c) a “ground disturbance” were a reference to an excavation activity;
(d) “within the area prescribed under subsection 112(5)” were a reference to within 30 m of the line; and
(e) “whose activity causes a ground disturb-ance” were a reference to conducting an excavation activity.
Exception
(4) For the purposes of subsection (3), in the provisions referred to in that subsection, a reference to an “abandoned pipeline” is not a reference to an abandoned international or interprovincial power line.
Offence
(5) Every person who contravenes subsection 58.31(1) or (2), a direction made under subsection 58.31(4) or an order or regulation made under section 58.33 is guilty of an offence and liable
(a) on conviction on indictment, to a fine of not more than one million dollars 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.
Application of subsections 121(2) to (5)
(6) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, to an offence under subsection (5).
2004, c. 25, s. 154
24. (1) Paragraph 73(b) of the Act is replaced by the following:
(b) purchase, take and hold of and from any person any land or other property necessary for the construction, maintenance, operation and abandonment of its pipeline, or the maintenance of its abandoned pipeline, and sell or otherwise dispose of any of its land or property that has become unnecessary for the purpose of the pipeline or the abandoned pipeline;
(2) Paragraph 73(e) of the Act is replaced by the following:
(e) construct, erect and maintain all necessary and convenient roads, buildings, houses, stations, depots, wharves, docks and other structures, and construct, purchase and acquire machinery and other apparatus necessary for the construction, maintenance, operation and abandonment of its pipeline or the maintenance of its abandoned pipeline;
(3) Paragraph 73(i) of the Act is replaced by the following:
(i) do all other acts necessary for the construction, maintenance, operation and abandonment of its pipeline or the maintenance of its abandoned pipeline.
25. Section 74 of the Act is amended by adding the following after subsection (2):
Terms and conditions — abandonment
(2.1) The Board may, on granting leave to abandon the operation of a pipeline, impose any terms and conditions that it considers proper.
26. (1) The portion of section 84 of the Act before paragraph (a) is replaced by the following:
Application restricted
84. The provisions of this Part that provide negotiation and arbitration procedures to determine compensation matters apply in respect of all damage caused by the pipeline or abandoned pipeline or anything carried by the pipeline but do not apply to
(2) Subparagraph 84(a)(i) of the Act is replaced by the following:
(i) the acquisition of lands for a pipeline or abandoned pipeline,
(3) Subparagraph 84(a)(ii) of the French version of the Act is replaced by the following:
(ii) construction du pipeline,
(4) Subparagraph 84(a)(iii) of the Act is replaced by the following:
(iii) the inspection, maintenance or repair of the pipeline or abandoned pipeline;
2001, c. 4, s. 104
27. Paragraphs 86(2)(c) and (d) of the Act are replaced by the following:
(c) compensation for damages caused by the company’s operations, pipelines or abandoned pipelines;
(d) indemnification from all liabilities, dam-ages, claims, suits and actions resulting from the company’s operations, pipelines or abandoned pipelines, other than liabilities, dam­ages, claims, suits and actions resulting from
(i) in the Province of Quebec, the gross or intentional fault of the owner of the lands, and
(ii) anywhere else in Canada, the gross negligence or wilful misconduct of the owner of the lands;
28. Subsection 88(1) of the Act is replaced by the following:
Request for negotiations
88. (1) If a company and an owner of lands have not agreed on the amount of compensation payable under this Act for the acquisition of lands or for damages caused by the company’s operations, pipelines or abandoned pipelines, or on any issue related to that compensation, the company or the owner may serve notice of negotiation on the other of them and on the Minister requesting that the matter be negotiated under subsection (3).
29. Subsection 90(2) of the Act is replaced by the following:
If subsequent disputes not settled
(2) If a company and a person who has had an award of compensation made in their favour or has entered into an agreement respecting compensation with the company are unable to settle any claim for damages caused by the company’s operations, pipelines or abandoned pipelines, or any matter respecting the compensation payable if annual or other periodic payments have been selected, the company or the person may serve notice of arbitration on the other of them and on the Minister requesting that the matter be determined by arbitration.
30. (1) The portion of subsection 91(1) of the Act before paragraph (a) is replaced by the following:
Duties of Minister
91. (1) Within six months from the day on which the Minister is served with a notice of arbitration under this Part, the Minister shall,
(2) Paragraphs 91(1)(a) and (b) of the English version of the Act are replaced by the following:
(a) if an Arbitration Committee exists to deal with the matter referred to in the notice, serve the notice on that Committee; or
(b) if no Arbitration Committee exists to deal with the matter, appoint an Arbitration Committee and serve the notice on that Committee.
31. The Act is amended by adding the following after section 91:
Replacing member
91.1 (1) If a member of an Arbitration Committee becomes incapacitated, resigns or dies, resulting in the loss of quorum, the Minister may appoint a replacement for that member.
Effects of replacing member
(2) If a replacement is appointed under subsection (1) to replace a member,
(a) evidence and representations received by the Arbitration Committee before the replacement was appointed are considered to have been received after the replacement was appointed; and
(b) the Arbitration Committee is bound by every decision that it made before the replacement was appointed unless it elects to review, vary or rescind a decision.
32. Subsection 93(5) of the Act is replaced by the following:
Written decisions
(5) An Arbitration Committee shall render its decision and the reasons for it in writing within six months from the day on which it concludes a hearing.
Continuation of obligation
(6) A failure by an Arbitration Committee to comply with subsection (5) within the required time limit does not affect its obligation to render the decision, and anything done by it in relation to that decision remains valid.
33. The Act is amended by adding the following after section 95:
Limitation period or prescription
95.1 (1) An Arbitration Committee shall conclude a hearing within 18 months from the day on which it is served with a notice of arbitration that is, in its opinion, complete.
Continuation of jurisdiction
(2) A failure by an Arbitration Committee to comply with subsection (1) within the required time limit does not affect its jurisdiction to deal with the matter referred to in the notice, and anything done by it in relation to that matter remains valid.
1990, c. 7, s. 28
34. (1) Subsections 112(1) to (3) of the Act are replaced by the following:
Prohibition — construction or ground disturbance
112. (1) It is prohibited for any person to construct a facility across, on, along or under a pipeline or engage in an activity that causes a ground disturbance within the prescribed area unless the construction or activity is authorized by the orders or regulations made under subsection (5) and done in accordance with them.
Prohibition — vehicles and mobile equipment
(2) It is prohibited for any person to operate a vehicle or mobile equipment across a pipeline unless
(a) that operation is authorized by the orders or regulations made under subsection (5) and done in accordance with them; or
(b) the vehicle or mobile equipment is operated within the travelled portion of a highway or public road.
1990, c. 7, s. 28; 2012, c. 19, s. 92(1)
(2) Subsection 112(5) of the Act is replaced by the following:
Regulations and orders
(5) The Board may make orders or regulations
(a) governing the design, construction, operation and abandonment of facilities constructed across, on, along or under pipelines;
(a.1) prescribing the area for the purposes of subsection (1);
(a.2) authorizing the construction of facilities across, on, along or under pipelines;
(a.3) authorizing ground disturbances within the prescribed area;
(b) governing the measures to be taken in relation to
(i) the construction of facilities across, on, along or under pipelines,
(ii) the construction of pipelines across, on, along or under facilities, other than railways, and
(iii) ground disturbances within the prescribed area;
(c) authorizing the operation of vehicles or mobile equipment across a pipeline and governing the measures to be taken in relation to that operation; and
(d) specifying activities for the purposes of paragraph (a) of the definition “ground disturbance” in section 2.
1999, c. 31, s. 167
(3) The portion of subsection 112(5.1) of the Act before paragraph (a) is replaced by the following:
Temporary prohibition on ground disturbances
(5.1) Orders or regulations made under subsection (5) may provide for the prohibition of ground disturbances in an area that is situated in the vicinity of a pipeline and that may extend beyond the prescribed area during the period that starts when a request is made to a pipeline company to locate its pipeline and ends
35. The Act is amended by adding the following after section 118:
Limitation period or prescription
118.1 (1) The Board shall decide whether to issue a licence for the exportation of oil or gas within six months from the day on which the applicant has, in the Board’s opinion, provided a complete application. The Board shall make that day public.
Continuation of jurisdiction
(2) A failure by the Board to comply with subsection (1) within the required time limit does not affect its jurisdiction to issue the licence and anything done by it in relation to the issuance of that licence remains valid.
Excluded period
(3) If the Board requires the applicant to provide information or undertake a study with respect to the application and the Board states publicly that this subsection applies, the period that is taken by the applicant to comply with the requirement is not included in the calculation of the time limit.
Public notice of excluded period
(4) The Board shall make public the day on which the period referred to in subsection (3) begins and the day on which it ends as soon as each day is known.
Extension
(5) The Minister may, by order, extend the time limit by a maximum of three months. The Governor in Council may, on the recommendation of the Minister, by order, further extend that time limit by any additional period or periods of time.
Governor in Council approval
118.2 (1) If a regulation made under subsection 119.01(1) requires the approval of the Governor in Council for the issuance of a licence for the exportation of oil or gas, the Board may issue the licence only if the Governor in Council grants its approval within three months from the day on which the Board makes its decision under subsection 118.1(1).
Continuation of jurisdiction.
(2) Despite subsection (1), if the Governor in Council grants its approval after the expiry of the time limit for doing so, the Board’s jurisdiction to issue the licence is not affected and anything done by it in relation to the issuance of that licence remains valid.
Period for issuing licence
(3) The Board shall issue the licence within seven days from the day on which the Governor in Council’s approval is granted.
36. Paragraph 129(1)(d) of the Act is amended by adding the following after subparagraph (i):
(i.1) companies that have been granted the leave required by paragraph 74(1)(d),
37. The Act is amended by adding the following after section 131:
Sentencing
Sentencing principles
132. (1) In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is found guilty of an offence under this Act in relation to an actual or potential unintended or uncontrolled release of oil, gas or any other commodity from a pipeline:
(a) the amount of the fine should be increased to account for each aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and
(b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.
Aggravating factors
(2) The aggravating factors are the following:
(a) the offence caused harm or risk of harm to human health or safety;
(b) the offence caused damage or risk of damage to the environment or environmental quality;
(c) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable component of the environment;
(d) the damage or harm caused by the offence is extensive, persistent or irreparable;
(e) the offender committed the offence intentionally or recklessly;
(f) the offender failed to take reasonable steps to prevent the commission of the offence;
(g) by committing the offence or failing to take action to prevent its commission, the offender increased or intended to increase their revenue or decreased or intended to decrease their costs;
(h) the offender has a history of non-compliance with federal or provincial legislation that relates to safety or environmental conservation or protection; and
(i) after the commission of the offence, the offender
(i) attempted to conceal its commission,
(ii) failed to take prompt action to prevent, mitigate or remediate its effects, or
(iii) failed to take prompt action to reduce the risk of committing similar offences.
Absence of aggravating factor
(3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor.
Meaning of “damage”
(4) For the purposes of paragraphs (2)(b) to (d), “damage” includes loss of use value and non-use value.
Reasons
(5) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (2) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision.
Orders of court
132.1 (1) If a person is found guilty of an offence under this Act in relation to an actual or potential unintended or uncontrolled release of oil, gas or any other commodity from a pipeline, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, in addition to any other punishment that may be imposed under this Act, make an order that has any or all of the following effects:
(a) prohibiting the offender from committing an act or engaging in an activity that may, in the opinion of the court, result in the continuation or repetition of the offence;
(b) directing the offender to take any action that the court considers appropriate to remedy or avoid any harm to the environment that results or may result from the act or omission that constituted the offence;
(c) directing the offender to carry out environmental effects monitoring in the manner established by the Board or directing the offender to pay, in the manner specified by the court, an amount of money for the purposes of environmental effects monitoring;
(d) directing the offender to make changes to their environmental protection program that are satisfactory to the Board;
(e) directing the offender to have an environmental audit conducted by a person of a class and at the times specified by the Board and directing the offender to take the measures that the Board considers appropriate to remedy any deficiencies revealed during the audit;
(f) directing the offender to pay to Her Majesty in right of Canada, for the purpose of promoting the conservation, protection or restoration of the environment, or to pay into the Environmental Damages Fund — an account in the accounts of Canada — an amount of money that the court considers appropriate;
(g) directing the offender to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection;
(h) directing the offender to notify, at the offender’s own cost and in the manner specified by the court, any person aggrieved or affected by the offender’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;
(i) directing the offender to post a bond or pay an amount of money into court that the court considers appropriate to ensure that the offender complies with all or part of any prohibition, direction, requirement or condition that is specified in the order;
(j) directing the offender to perform community service, subject to any reasonable conditions that may be imposed by the court;
(k) directing the offender to pay, in the manner prescribed by the court, an amount of money to environmental, health or other groups to assist in their work;
(l) directing the offender to pay, in the manner prescribed by the court, an amount of money to an educational institution including for scholarships for students enrolled in studies related to the environment;
(m) requiring the offender to comply with any conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for preventing the offender from repeating the same offence or committing another offence under this Act; and
(n) prohibiting the offender from applying for any new authorization under this Act during any period that the court considers appropriate.
Coming into force and duration of order
(2) An order made under subsection (1) comes into force on the day on which the order is made or on any other day that the court may determine, but shall not continue in force for more than three years after that day.
Publication
(3) If an offender does not comply with an order requiring the publication of facts relating to the offence and the details of the punishment, the Board may, in the manner that the court directed the offender, publish those facts and details and recover the costs of publication from the offender.
Debt due to Her Majesty
(4) If the Board incurs publication costs under subsection (3), the costs constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.
Variation of sanctions
132.2 (1) Subject to subsection (2), if a court has made, in relation to an offender, an order under section 132.1, the court may, on application by the offender or the Board, require the offender to appear before it and, after hearing the offender and the Board, may vary the order in one or more of the following ways that the court considers appropriate because of a change in the offender’s circumstances since the order was made:
(a) by making changes to any prohibition, direction, requirement or condition that is specified in the order or by extending the time during which the order is to remain in force for any period that is not more than one year; or
(b) by decreasing the time during which the order is to remain in force or by relieving the offender, either absolutely or partially or for any period, of compliance with any condition that is specified in the order.
Notice
(2) Before varying the order under subsection (1), the court may direct that notice be given to any persons that the court considers to be interested and may hear any of those persons.
Subsequent applications with leave
132.3 If an application made under subsection 132.2(1) in relation to an offender has been heard by a court, no other application shall be made under section 132.2 in relation to the offender except with leave of the court.
Recovery of fines and amounts
132.4 If a person is found guilty of an offence under this Act and a fine that is imposed is not paid when required, or if a court orders an offender to pay an amount under subsection 132.1(1) or 132.2(1) and the amount is not paid, the prosecutor may, by filing the conviction or order, as the case may be, enter as a judgment the amount of the fine or the amount ordered to be paid, and costs, if any, in any court of competent jurisdiction in Canada, and the judgment is enforceable against the person in the same manner as if it were a judgment rendered against them in that court in civil proceedings.
38. Section 133 of the Act is replaced by the following:
Report to Parliament
133. The Board shall, within four months after the end of each fiscal year, submit to the Minister a report on the activities of the Board under this Act for that fiscal year, and the Minister shall cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the day on which the report is received.
R.S., c. O-7; 1992, c. 35, s. 2
CANADA OIL AND GAS OPERATIONS ACT
39. Section 2 of the Canada Oil and Gas Operations Act is amended by adding the following in alphabetical order:
“abandoned pipeline”« pipeline abandonné »
“abandoned pipeline” means a pipeline the operation of which has been abandoned with the leave of the National Energy Board as required by paragraph 4.01(1)(d) and that remains in place;
40. Section 4.01 of the Act is amended by adding the following after subsection (2):
Terms and conditions — abandonment
(2.1) The National Energy Board may, on granting leave to abandon the operation of a pipeline, impose any terms and conditions that it considers proper.
Costs and expenses related to abandonment
(2.2) The National Energy Board may order a holder of an authorization issued under paragraph 5(1)(b) or a holder of that authorization that has obtained the Board’s leave to abandon the operation of its pipeline, or the holder’s successor or assign, to take any measure that the Board considers necessary to ensure that the holder, or its successor or assign, has the ability to pay for the abandonment of its pipelines and any costs and expenses related to its abandoned pipelines.
1992, c. 35, s. 8
41. (1) Subsection 5.01(1) of the Act is replaced by the following:
Right of entry
5.01 (1) Any person may, for the purpose of exploring for or exploiting oil or gas, maintaining safety or protecting the environment, enter on and use the surface of the land in any area in which this Act applies in order to carry on a work or activity authorized under paragraph 5(1)(b).
Right of entry — abandoned pipeline
(1.1) Any person or their successor or assign may, for the purpose of maintaining safety or protecting the environment, enter on and use the surface of the land in any area in which this Act applies in order to carry on a work or activity in relation to an abandoned pipeline for which the person has received the leave required by paragraph 4.01(1)(d).
2002, c. 10, s. 190
(2) The portion of subsection 5.01(2) of the Act before paragraph (a) is replaced by the following:
Restriction
(2) Despite subsections (1) and (1.1), if a person occupies land in an area to which this Act applies and that person owns or has title to the land — or has lawful possession of it, other than by virtue of an authorization under paragraph 5(1)(b) or an interest as defined in section 2 of the Canada Petroleum Resources Act — it is prohibited for anyone to enter on or use the surface of that land without the consent of the occupier or, if consent has been refused, except in accordance with the terms and conditions of
2002, c. 10, s. 190
(3) Subsection 5.01(3) of the Act is replaced by the following:
Exception
(3) Subsections (1) to (2) do not apply in respect of Inuit-owned land as defined in subsection 2(1) of the Nunavut Waters and Nunavut Surface Rights Tribunal Act.
2007, c. 35, s. 149
42. Section 5.37 of the Act is replaced by the following:
Documents
5.37 (1) A holder of the leave required by paragraph 4.01(1)(d) and a holder of an authorization to construct or operate a pipeline issued under paragraph 5(1)(b), or the successor or assign of either holder, shall keep, in a form and manner determined by the National Energy Board, any documents, including any records or books of account, that the Board requires and that contain information that is determined by the Board to be necessary for the administration of this Act and any regulations made under it.
Production and inspection
(2) The holder of that leave and the holder of that authorization, or the successor or assign of either holder, shall produce those documents to the National Energy Board, or make them available to the Board or its designated representative, for inspection or copying at a time and under conditions set by the Board.
43. The Act is amended by adding the following after section 15:
Orders and regulations — National Energy Board
15.1 The National Energy Board may make orders or regulations prohibiting activities within an area specified in the order or regulation around a pipeline, an abandoned pipeline or other work, authorizing exceptions to those prohibitions and specifying measures to be taken in relation to those exceptions.
44. Section 54 of the Act is renumbered as subsection 54(1) and is amended by adding the following:
Compliance audit
(2) For greater certainty, the powers set out in subsection (1) include the power to conduct a compliance audit.
1992, c. 35, s. 29
45. Section 56 of the English version of the Act is replaced by the following:
Assistance to officers
56. The owner, the person in charge of any place referred to in subsection 54(1) and every person found in the place shall give a safety officer, the Chief Safety Officer, a conservation officer or the Chief Conservation Officer, as the case may be, all reasonable assistance to enable the officer to carry out duties and functions under this Act or the regulations.
1992, c. 35, s. 29
46. (1) Subsection 58(1) of the Act is replaced by the following:
Power of officers
58. (1) A safety officer, the Chief Safety Officer, a conservation officer or the Chief Conservation Officer may order that an op-eration or activity in any area to which this Act applies cease or be continued only in accordance with the terms of the order if the officer, on reasonable grounds, is of the opinion that its continuation could result in harm to a person, damage to the environment or property or a breach of security, or is not in compliance with this Act or the regulations, and
(a) the operation is in relation to the exploration or drilling for or the production, conservation, processing or transportation of oil or gas; or
(b) the activity is prohibited by an order or regulation made under section 15.1.
1992, c. 35, s. 29; 1994, c. 10, s. 12(1)
(2) Subsections 58(2) and (3) of the English version of the Act are replaced by the following:
Notice
(2) The officer who makes an order under subsection (1) shall affix at or near the scene of the operation a notice of the order in a form approved by the National Energy Board.
Expiry of order
(3) An order made by a safety officer or a conservation officer under subsection (1) expires 72 hours after it is made unless it is confirmed before that time by order of the Chief Safety Officer or the Chief Conservation Officer, as the case may be.
1992, c. 35, s. 29
(3) Subsection 58(4) of the Act is replaced by the following:
Modification or revocation
(4) A safety officer or a conservation officer who makes an order under subsection (1) shall immediately so advise the Chief Safety Officer or the Chief Conservation Officer, as the case may be, and that Chief Officer may modify or revoke the order.
1994, c. 10, s. 12(2)
(4) Subsection 58(5) of the English version of the Act is replaced by the following:
Referral for review by National Energy Board
(5) A person carrying out an operation to which an order under subsection (1) makes reference, or any person having a pecuniary interest in that operation, may, by notice in writing, request the Chief Safety Officer or the Chief Conservation Officer, as the case may be, to refer the order to the National Energy Board to review the need for the order under section 28.6 of the National Energy Board Act and, on receiving the notice, that Chief Officer shall refer the order accordingly.
COMING INTO FORCE
Order or 12 months after royal assent
47. The provisions of this Act come into force 12 months after the day on which this Act receives royal assent or on any earlier day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons