BILL NO. 18
(as introduced)
2nd Session, 62nd General Assembly
Nova Scotia
63 Elizabeth II, 2014
Canada-Nova Scotia Offshore
Petroleum Resources Accord
Implementation (Nova Scotia) Act
(amended)
The Honourable Andrew Younger
Minister of Energy
First Reading: October 7, 2014
Second Reading: October 20, 2014
Third Reading: October 31, 2014 (LINK TO BILL AS PASSED)
Explanatory Notes
Clause 2 updates cross-references in a Section that requires consultation by the provincial Minister responsible for the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation (Nova Scotia) Act (the "Accord Act") with his or her federal counterpart before the making of regulations under certain provisions of the Accord Act.
Clause 3 allows the Governor in Council to make regulations respecting fees or charges in respect of services or products provided by the Canada-Nova Scotia Offshore Petroleum Board (the "Board") or in relation to its activities, and providing that such fees or charges collected be split evenly between the Governments of Canada and Nova Scotia.
Clause 4 corrects the name of the province of Newfoundland and Labrador.
Clause 5 provides for the holding of public hearings by the Board in its capacity as a responsible authority under the Canadian Environmental Assessment Act, 2012 and allows the Board to take measures to ensure the confidentiality of certain information that would otherwise be disclosed at the hearings.
Clause 6 provides that the Board may not make an order requiring an owner of any interest in relation to any portion of a significant discovery area to drill if the interest owner has completed a well on the relevant portion of the offshore area within the preceding six months.
Clause 7 removes the authority of the Governor in Council to make regulations prescribing fees, a power made redundant by the enactment of Section 30A by this Act.
Clause 8 removes a reference to "test hole" from the definition of "well termination date" and expands the Board's authority to disclose information that it obtains under the Accord Act.
Clause 9
(a) requires the Board to give notice of its intention to disclose information or documentation to the person who provided the information or documentation to the Board;
(b) allows the person to make representations to the Board as to why the information and documentation should not be disclosed; and
(c) provides for review of the Board's decision to disclose by the Supreme Court of Nova Scotia upon application.
Clause 10 expands the purpose of Part III of the Accord Act to include the promotion of accountability in accordance with the "polluter pays" principle.
Clause 11 corrects a cross-reference in the Accord Act.
Clause 12 expands the Board's powers to delegate to include the delegation of the Board's powers under Section 159A as enacted by this Act.
Clause 13 updates cross-references and modernizes the language of the Accord Act.
Clause 14
(a) authorizes the Board to issue a decision statement referred to under the Canadian Environmental Assessment Act, 2012 in respect of physical activity to which an application for an authorization or the approval of a development plan relates;
(b) defines physical activity for that purpose;
(c) prescribes how the period for rendering a decision statement is to be calculated when the applicant must provide information or undertake a study; and
(d) authorizes the Board to establish a participant funding program to facilitate the participation of the public in such environmental assessments.
Clause 15 restricts when the Board may permit the use of a spill-treating agent in an authorization.
Clause 16 requires the Board to ensure that an applicant has the financial resources necessary to account for its potential liability before issuing an authorization for a work or activity.
Clause 17 updates the regulation-making powers to reflect the amendments contained elsewhere in this Act and corrects an incorrect cross-reference.
Clause 18 provides for the amendment of Schedules V and VI, as enacted by this Act, by order of the Governor in Council.
Clause 19 allows the Board to publish guidelines and interpretations on the application and administration of subsection 160(1A) and regulations made under Sections 30A and 146.
Clause 20 updates the definitions of "spill", "actual loss or damage" and "debris" that apply in Sections 158 to 162 of the Accord Act.
Clause 21 governs the use of spill-treating agents.
Clause 22
(a) expands liability for a spill or authorized discharge to include all actual loss or damage incurred as a result of any action or measure taken in relation to the spill or discharge and all loss of non-use value relating to a public resource that is affected by the spill or discharge or as a result of any action or measure taken in relation to the spill or discharge;
(b) expands liability for damages as a result of debris, or as a result of any action or measure taken in relation to debris, to include liability for loss of non-use value relating to a public resource;
(c) provides for vicarious liability in respect of contractors;
(d) expands the absolute liability of authorization holders to $1 billion, or such greater amount as the Governor in Council sets by regulation;
(e) governs the liability of authorization holders under other laws; and
(f) provides that only Her Majesty in right of Nova Scotia or Canada may bring an action to recover a loss of non-use value and ranks the priority of such claims in relation to those for actual loss and the costs and expenses in taking any action or measure in relation to the spill or the authorized discharge.
Clause 23 governs the proof of financial resources to satisfy potential liability that an authorization holder is required to provide to the Board.
Clause 24
(a) requires an applicant for an authorization to drill for or develop or produce petroleum to provide a letter of credit, guarantee or indemnity bond in the amount of $100 million or such greater amount as the Board determines;
(b) provides for the establishment of a $250 million pooled industry fund as an alternative means of providing proof of financial responsibility;
(c) allows the Governor in Council to require, by regulation, an increase in the amount held in the pooled fund;
(d) specifies how long the proof of financial responsibility must remain in place;
(e) allows the Board to require that money be paid out of the letter of credit, guarantee, indemnity bond or pooled fund in respect of claims made; and
(f) requires an authorization holder to reimburse the pooled fund for money paid out of the fund in respect of claims against the authorization holder.
Clause 25 allows the Minister, upon the recommendation of the Board and with the approval of the federal Minister responsible for the Accord Act, to approve a limit of absolute liability under proposed subsection 159(2B) that is less than $1 billion or an amount for proof of financial responsibility under clause 160(1)(a) that is less than $250 million.
Clause 26 prescribes sentencing principles and aggravating factors to be considered by a court when sentencing a person who has committed an offence under Part III of the Accord Act.
Clause 27 authorizes the court sentencing a person who has been convicted of an offence under Part III of the Accord Act to make an order requiring the offender to do or abstain from doing certain things and provides for the enforcement of unpaid fines and to vary the order if the offender's circumstances change.
Clause 28 establishes a regime for imposing administrative monetary penalties.
Clauses 29 and 30 add headings to the Act.
Clause 31 corrects a cross-reference in Schedule IV of the Accord Act.
Clause 32 enacts the Schedules referred to in proposed subsections 146A(1), 158A(1) and 158B(3).
Clauses 33 to 37 enact amendments to this Act, Chapter 16 of the Acts of 2013 and the Accord Act to deal with the co-ordination of the coming into force of this Act and Chapter 16 of the Acts of 2013.
Clause 38 governs the coming into force of this Act.
An Act to Amend Chapter 3
of the Acts of 1987,
the Canada-Nova Scotia Offshore
Petroleum Resources Accord
Implementation (Nova Scotia) Act
Be it enacted by the Governor and Assembly as follows:
1 Section 2 of Chapter 3 of the Acts of 1987, the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation (Nova Scotia) Act, as amended by Chapter 16 of the Acts of 1993, Chapter 14 of the Acts of 2007, Chapter 17 of the Acts of 2012 and Chapters 15 and 16 of the Acts of 2013, is further amended by(a) striking out the period at the end of clause (x) and substituting a semicolon; and
(b) adding immediately after clause (x) the following clause:
3 Chapter 3 is further amended by adding immediately after Section 30 the following Sections:
(a) respecting the fees or charges, or the method of calculating the fees or charges, to be paid for the provision, by the Board, of a service or product under this Act;
(b) respecting the fees or charges, or the method of calculating the fees or charges, in respect of any of the Board's activities under this Act or under the Canadian Environmental Assessment Act, 2012, that are to be paid by
(ii) the holder of an operating licence issued under clause (a) of subsection (1) of Section 135 or an authorization issued under clause (b) of subsection (1) of Section 135; and
(c) respecting the refund of all or part of any fee or charge referred to in clause (a) or (b), or the method of calculating that refund.
(2) The amounts of the fees or charges referred to in clause (a) of subsection (1) shall not exceed the cost of providing the services or products.
(3) The amounts of the fees or charges referred to in clause (b) of subsection (1) shall not exceed the cost of the Board's activities under this Act or under the Canadian Environmental Assessment Act, 2012.
30B One half of the amounts of the fees and charges obtained in accordance with regulations made under Section 30A shall be paid to the credit of the Receiver General for Canada and the other half shall be paid to the credit of Her Majesty in right of the Province, in the time and manner prescribed under those regulations.
4 Clause 39(1)(c) of Chapter 3 is repealed and the following clause substituted:
5 Chapter 3 is further amended by adding immediately after Section 44 the following Sections:
44B At any public hearing conducted under Section 44A, the Board may take any measures and make any order that it considers necessary to ensure the confidentiality of any information likely to be disclosed at the hearing if the Board is satisfied that
(a) disclosure of the information could reasonably be expected to result in a material loss or gain to a person directly affected by the hearing, or to prejudice the person's competitive position, and the potential harm resulting from the disclosure outweighs the public interest in making the disclosure; or
(b) the information is financial, commercial, scientific or technical information that is confidential information supplied to the Board and
(ii) the person's interest in confidentiality outweighs the public interest in its disclosure.
44C At any public hearing conducted under Section 44A, the Board may take any measures and make any order that it considers necessary to ensure the confidentiality of information that is likely to be disclosed at the hearing if the Board is satisfied that
(a) there is a real and substantial risk that disclosure of the information will impair the security of pipelines, as defined in Section 133, installations, vessels, aircraft or systems, including computer or communication systems, or methods employed to protect them; and
(b) the need to prevent disclosure of the information outweighs the public interest in its disclosure.
44D The Board shall not take any measures or make any order under Section 44B or 44C in respect of information or documentation referred to in clauses (a) to (e) and (i) of subsection (5) of Section 121.
6 Subsection 82(2) of Chapter 3 is repealed and the following subsection substituted:
7 Clause 120(e) of Chapter 3 is repealed.
8 (1) Clause 121(1)(k) of Chapter 3 is repealed and the following clause substituted:
(2) Section 121 of Chapter 3, as amended by Chapter 12 of the Acts of 1992, is further amended by adding immediately after subsection (6) the following subsections:
(a) the government or agency undertakes to keep the information or documentation confidential and not to disclose it without the Board's written consent;
(b) the information and documentation is disclosed in accordance with any conditions agreed to by the Board and the government or agency; and
(c) in the case of disclosure to a foreign government or agency, the Minister and federal Minister consent in writing.
(8) The Board may disclose to the Minister and federal Minister the information or documentation that it has disclosed or intends to disclose under subsection (7), but the Minister and the federal Minister are not to further disclose that information or documentation unless the Board consents in writing to that disclosure or the Minister or the federal Minister is required by an Act of the Legislature or an Act of Parliament, as the case may be, to disclose that information or documentation.
(9) For the purposes of clause (a) of subsection (7) and subsection (8), the Board may consent to the further disclosure of information or documentation only if the Board itself is authorized under this Section to disclose it.
(10) Subsection (2) does not apply in respect of information regarding the applicant for an operating licence or authorization under subsection (1) of Section 135 or the scope, purpose, location, timing and nature of the proposed work or activity for which the authorization is sought.
(11) Subsection (2) does not apply in respect of information or documentation provided for the purposes of a public hearing conducted under Section 44A.
(12) Subject to Section 122, the Board may disclose all or part of any information or documentation related to safety or environmental protection that is provided in relation to an application for an operating licence or authorization under subsection (1) of Section 135 or to an operating licence or authorization that is issued under that subsection or provided in accordance with any regulation made under this Part or Part III.
(13) Notwithstanding subsection (12), the Board is not permitted to disclose information or documentation under that subsection if the Board is satisfied that
(a) disclosure of it could reasonably be expected to result in a material loss or gain to a person, or to prejudice the person's competitive position, and the potential harm resulting from the disclosure outweighs the public interest in making the disclosure;
(b) it is financial, commercial, scientific or technical information or documentation that is confidential and has been consistently treated as such by a person who would be directly affected by its disclosure, and for which the person's interest in confidentiality outweighs the public interest in its disclosure; or
(c) there is a real and substantial risk that disclosure of it will impair the security of pipelines, as defined in Section 133, installations, vessels, aircraft or systems, including computer or communication systems, used for any work or activity in respect of which this Act applies--or methods employed to protect them--and the need to prevent its disclosure outweighs the public interest in its disclosure.
(14) Subsections (10) to (12) do not apply in respect of information or documentation described in clauses (a) to (e) and (i) of subsection (5).
9 Chapter 3 is further amended by adding the following Section immediately after Section 121:
(2) Any person to whom a notice is required to be given under subsection (1) may waive the requirement, and where that person has consented to the disclosure that person is deemed to have waived the requirement.
(3) A notice given under subsection (1) shall include
(a) a statement that the Board intends to disclose information or documentation under subsection (12) of Section 121;
(b) a description of the information or documentation that was provided by the person to whom the notice is given; and
(c) a statement that the person may, within twenty days after the day on which the notice is given, make written representations to the Board as to why the information or documentation, or a portion of it, should not be disclosed.
(4) Where a notice is given to a person by the Board under subsection (1), the Board shall
(a) give the person the opportunity to make, within twenty days after the day on which the notice is given, written representations to the Board as to why the information or documentation, or a portion of it, should not be disclosed; and
(b) after the person has had the opportunity to make representations, but no later than thirty days after the day on which the notice is given, make a decision as to whether or not to disclose the information or documentation and give written notice of the decision to the person.
(5) A notice given under clause (b) of subsection (4) of a decision to disclose information or documentation shall include
(a) a statement that the person to whom the notice is given may request a review of the decision under subsection (7) within twenty days after the day on which the notice is given; and
(b) a statement that where no review is requested under subsection (7) within twenty days after the day on which the notice is given, the Board shall disclose the information or documentation.
(6) Where, under clause (b) of subsection (4), the Board decides to disclose the information or documentation, the Board shall disclose it on the expiry of twenty days after a notice is given under that clause, unless a review of the decision is requested under subsection (7).
(7) Any person to whom the Board is required under clause (b) of subsection (4) to give a notice of a decision to disclose information or documentation may, within twenty days after the day on which the notice is given, apply to the Supreme Court of Nova Scotia for a review of the decision.
(8) An application made under subsection (7) shall be heard and determined in a summary way in accordance with any applicable rules of practice and procedure of the Supreme Court of Nova Scotia.
(9) In any proceedings arising from an application under subsection (7), the Supreme Court of Nova Scotia shall take every reasonable precaution, including, where appropriate, conducting hearings in camera, to avoid the disclosure by the Court or any person of any information or documentation that, under this Act, is privileged or is not to be disclosed.
10 Section 133A of Chapter 3, as enacted by Chapter 12 of the Acts of 1992, is amended by adding immediately after clause (b) the following clause:
11 Section 134C of Chapter 3, as enacted by Chapter 56 of the Acts of 1988, is amended by striking out "134A" in the last line and substituting "134AA".
12 Section 134D of Chapter 3 is repealed and the following Section substituted:
13 (1) Subsection 135(3) of Chapter 3 is repealed and the following subsection substituted:
(2) Subsection 135(5) of Chapter 3, as enacted by Chapter 12 of the Acts of 1992 and amended by Chapter 16 of the Acts of 2013, is further amended by
(a) striking out clause (a) and substituting the following clauses:
(aa) a fee or charge payable in accordance with regulations made under Section 30A;
(b) striking out clause (c) and substituting the following clause:
14 Chapter 3 is further amended by renumbering Section 135AA as Section 135AC and adding immediately before that Section the following Sections:
(2) The physical activity in question is a physical activity that
(a) is carried out in the offshore area;
(b) is designated by regulations made under paragraph (a) of section 84 of the Canadian Environmental Assessment Act, 2012 or in an order made under subsection (2) of section 14 of that Act;
(c) is one for which the Board is the responsible authority as defined in subsection (1) of section 2 of that Act; and
(d) is one in relation to which an environmental assessment was not referred to a review panel under section 38 of that Act,
and includes any physical activity that is incidental to the physical activity described in clauses (a) to (d).
(3) Where the Board requires the applicant to provide information or undertake a study with respect to the physical activity, the period that is taken by the applicant, in the Board's opinion, to comply with the requirement is not included in the calculation of the period referred to in subsection (1).
(4) The Board shall, without delay, make public
(a) the date on which the twelve-month period referred to in subsection (1) begins; and
(b) the dates on which the period referred to in subsection (3) begins and ends.
135AB The Board may establish a participant funding program to facilitate the participation of the public in the environmental assessment as defined in subsection (1) of section 2 of the Canadian Environmental Assessment Act, 2012 of any physical activity described in subsection (2) of Section 135AA that meets the condition set out in paragraph (a) of subsection (1) of section 58 of that Act and that is the subject of an application for an authorization under clause (b) of subsection (1) of Section 135 or an application made under subsection (2) of Section 136.
15 (1) Chapter 3 is further amended by adding immediately after Section 135B the following Section:
(2) Section 135BA of Chapter 3 is repealed and the following Section substituted:
16 Section 135C of Chapter 3 is repealed and the following Section substituted:
17 Subsection 146(1) of Chapter 3, as enacted by Chapter 12 of the Acts of 1992, is amended by
(a) adding ", and accountability" immediately after "environment" in the third line;
(b) adding immediately after clause (b) the following clauses:
(bb) concerning the process for the determination of net environmental benefit;
(bc) concerning the variation or revocation of an approval referred to in subsection (1) of Section 158A;
(c) striking out "135A" in the second line of clause (d) and substituting "135AA";
(d) striking out "135AA" in the second line of clause (d) and substituting "135AC";
(e) striking out the "and" at the end of clause (h); and
(f) adding immediately after clause (h) the following clauses:
(hb) concerning the circumstances under which the Board may make a recommendation for the purposes of subsection (1) of Section 160A and the information to be submitted with respect to that recommendation;
(hc) concerning the creation, conservation and production of records; and
18 Chapter 3 is further amended by adding immediately after Section 146 the following Section:
(2) The order shall be made on the recommendation of the Minister and every minister of the Executive Council responsible for the administration of the provision.
19 Section 148 of Chapter 3 is repealed and the following Section substituted:
20 Subsections 157(1) to (3) of Chapter 3 are repealed and the following subsections substituted:
(2) In Section 159, "actual loss or damage" includes loss of income, including future income, and, with respect to any Aboriginal peoples of Canada, loss of hunting, fishing and gathering opportunities, but does not include loss of income recoverable under subsection (3) of section 42 of the Fisheries Act (Canada).
(3) In Sections 159 to 160 and 162, "debris" means any installation or structure that was put in place in the course of any work or activity required to be authorized under clause (b) of subsection (1) of Section 135 and that has been abandoned without an authorization that may be required by or under this Part, or any material that has broken away or been jettisoned or displaced in the course of any of that work or activity.
21 (1) Chapter 3 is further amended by adding immediately after Section 158 the following Sections:
(a) the authorization issued under clause (b) of subsection (1) of Section 135 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 (3) or (4) of Section 158.
(2) The provisions referred to in Schedule VI continue to apply to the holder of an authorization referred to in clause (a) of subsection (1) in respect of any harm that is caused by the spill or, notwithstanding subsection (1), by the interaction between the spill-treating agent and the spilled oil.
(3) Other than in the case of a small-scale test, the approval required under clause (b) of subsection (1) shall be in writing and shall not be granted unless
(a) the Chief Conservation Officer has consulted with the Minister and the federal Minister with respect to the approval;
(b) the Minister has consulted with the Minister of 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.
158B (1) For the purpose of a particular research project pertaining to the use of a spill-treating agent in mitigating the environmental impacts of a spill, the Minister may grant approval to the federal Minister for the Minister of the Environment for Canada to authorize, and establish conditions for, the deposit of a spill-treating agent, oil or oil surrogate.
(2) The Minister shall not grant approval to the federal Minister for the Minister of the Environment for Canada to authorize the deposit of an oil surrogate unless the Minister of the Environment for Canada has determined that the oil surrogate poses fewer safety, health or environmental risks than oil.
(3) Where the conditions set out in the authorization are met, the provisions referred to in Schedules V and VI do not apply in respect of the spill-treating agent, oil and oil surrogate required for the research project.
(2) Subsection 158A(1) of Chapter 3, as enacted by subsection (1), is amended by
(a) striking out clause (b) and substituting the following clause:
(b) striking out the period at the end of clause (c) and substituting "; and"; and
(c) adding immediately after clause (c) the following clause:
(d) the agent is used in accordance with the regulations.
(3) Subsection 158A(3) of Chapter 3 is repealed and the following subsection substituted:
22 (1) Clauses 159(1)(a) and (b) of Chapter 3 are repealed and the following clauses substituted:
(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 the Province or Canada 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 clause (b) of subsection (1) of Section 135 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 (2B) for the actual loss or damage, the costs and expenses and the loss of non-use value described in subclauses (i) to (iii) of clause (a).
(2) Subsections 159(2) to (3) are repealed and the following subsections substituted:
(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 clause (b) of subsection (1) of Section 135 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 (2B), for that loss, actual loss or damage, and for those costs and expenses.
(2A) A person who is required to obtain an authorization under clause (b) of subsection (1) of Section 135 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 clause (a) of subsection (1) or clause (a) of subsection (2) 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 subclauses (i) to (iii) of clause (a) of subsection (1) and subsection (2).
(2B) For the purposes of clause (b) of subsection (1) and clause (b) of subsection (2), the limit of liability is one billion dollars.
(2C) Subject to Section 6, the Governor in Council may, by regulation, increase the amount referred to in subsection (2B).
(2D) Where a person is liable under clause (b) of subsection (1) or clause (b) of subsection (2) 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 of liability that is set out in subsection (2B) and the limit up to which the person is liable under the other Act and, where the other Act does not set out a limit of liability, the limits set out in subsection (2B) do not apply.
(2E) Only Her Majesty in right of the Province or Canada may bring an action to recover a loss of non-use value described in subsections (1) and (2).
(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) Subsection 159(4) of Chapter 3 is amended by striking out "Nothing" in the first line and substituting "Subject to subsection (2E), nothing".
23 Chapter 3 is further amended by adding immediately after Section 159 the following Section:
(2) An applicant for an authorization under clause (b) of subsection (1) of Section 135 for any other work or activity shall provide proof, in the prescribed form and manner, that it has the financial resources necessary to pay an amount that is determined by the Board.
(3) When the Board determines an amount under subsection (1) or (2), the Board is not required to consider any potential loss of non-use value relating to a public resource that is affected by a spill or the authorized discharge, emission or escape of petroleum or as a result of debris.
(4) The holder of an authorization under clause (b) of subsection (1) of Section 135 shall ensure that the proof referred to in subsections (1) and (2) remains in force for the duration of the work or activity in respect of which the authorization is issued.
(5) The holder of an authorization under clause (b) of subsection (1) of Section 135 shall also ensure that the proof referred to in subsection (1) remains in force for a period of one year beginning on the day on which the Board notifies the holder that it has accepted a report submitted by the holder indicating that the last well in respect of which the authorization is issued is abandoned, and the Board may reduce that period and may decide that the proof that is to remain in force during that period is proof that the holder has the financial resources necessary to pay an amount that is less than the amount referred to in subsection (1) and that is determined by the Board.
24 (1) Subsections 160(1) to (2) of Chapter 3 are repealed and the following subsections substituted:
(a) in the case of the drilling for or development or production of petroleum in the offshore area, in the amount of one hundred million dollars or, where the Board considers it necessary, in a greater amount that the Board determines; or
(b) in any other case, in an amount that is satisfactory to, and determined by, the Board.
(1A) An applicant to which clause (a) of subsection (1) applies may, rather than provide proof of financial responsibility in the amount referred to in that clause, provide proof that it participates in a pooled fund that is established by the oil and gas industry, that is maintained at a minimum of two hundred and fifty million dollars and that meets any other requirements that are established by regulation.
(1B) Subject to Section 6, the Governor in Council may, by regulation, increase the amount referred to in subsection (1A).
(1C) The holder of an authorization under clause (b) of subsection (1) of Section 135 shall ensure that the proof of financial responsibility referred to in subsection (1) or (1A) remains in force for the duration of the work or activity in respect of which the authorization is issued.
(1D) The holder of an authorization under clause (b) of subsection (1) of Section 135 shall also ensure that the proof referred to in clause (a) of subsection (1) or subsection (1A) remains in force for a period of one year beginning on the day on which the Board notifies the holder that it has accepted a report submitted by the holder indicating that the last well in respect of which the authorization is issued is abandoned, and the Board may reduce that period and may decide--other than in the case of a holder that participates in a pooled fund--that the proof that is to remain in force during that period is for an amount that is less than the amount referred to in clause (a) of subsection (1) and that is determined by the Board.
(2) The Board may require that moneys in an amount not exceeding the amount prescribed for any case or class of cases, or determined by the Board in the absence of regulations, be paid out of the funds available under the letter of credit, guarantee or indemnity bond or other form of financial responsibility provided under subsection (1), or be paid out of the pooled fund referred to in subsection (1A), in respect of any claim for which proceedings may be instituted under Section 159, whether or not those proceedings have been instituted.
(2) Section 160 of Chapter 3, as amended by Chapter 12 of the Acts of 1992, is further amended by adding immediately after subsection (4) the following subsection:
25 Chapter 3 is further amended by adding immediately after Section 160 the following Section:
(2) Where the Minister approves an amount that is less than the amount referred to in subsection (2B) of Section 159 in respect of an applicant for an authorization under clause (b) of subsection (1) of Section 135, that applicant, for the purposes of subsection (1) of Section 159A, shall only provide proof that it has the financial resources necessary to pay the adjusted amount approved by the Minister.
(3) No applicant for an authorization under clause (b) of subsection (1) of Section 135 contravenes clause (a) of subsection (1) of Section 160 if that applicant provides proof of financial responsibility in the amount that is approved by the Minister under this Section.
(a) the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (4); and
(b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.
(4) 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 to 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 the offender's revenue or decreased the offender's costs or intended to increase the offender's revenue or decrease the offender's costs;
(h) the offender has a history of noncompliance with federal or provincial legislation that relates to safety or environmental conservation or protection; and
(i) after the commission of the offence, the offender
(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 in the future.
(4A) The absence of an aggravating factor set out in subsection (4) is not a mitigating factor.
(4B) For the purposes of clauses (b) to (d) of subsection (4), "damage" includes loss of use value and non-use value.
(4C) Where the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (4) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision.
(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 the offender's environmental management system 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 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 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 specified 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 specified 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 Part;
(n) prohibiting the offender from taking measures to acquire an interest or from applying for any new licence or other authorization under this Act during any period that the court considers appropriate.
(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.
(3) Where 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.
(4) Where the Board incurs publication costs under subsection (3), the costs constitute a debt due to the Board and may be recovered in any court of competent jurisdiction.
193A (1) Subject to subsection (2), where a court has made, in relation to an offender, an order under Section 193, 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, 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 for any period or by extending the period during which the order is to remain in force, not exceeding one year; or
(b) by decreasing the period during which the order is to remain in force or by relieving the offender of compliance with any condition that is specified in the order, either absolutely or partially or for any period.
(2) Before making an 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.
193B Where an application made under subsection (1) of Section 193A in relation to an offender has been heard by a court, no other application may be made under Section 193A in relation to the offender except with leave of the court.
193C Where a person is convicted of an offence under this Part and a fine that is imposed is not paid when required or where a court orders an offender to pay an amount under subsection (1) of Section 193 or subsection (1) of Section 193A, 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 the Supreme Court of Nova Scotia, 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.
(a) designating as a violation that may be proceeded with in accordance with this Part
(ii) the contravention of any direction, requirement, decision or order, or of any direction, requirement, decision or order of a specified class of directions, requirements, decisions or orders, made under this Part, or
(b) respecting the determination of, or the method of determining, the amount payable as the penalty, which may be different for individuals and other persons, for each violation; and
(c) respecting the service of documents required or authorized under Section 199G, 199L or 199O, including the manner and proof of service and the circumstances under which documents are considered to be served.
(2) The amount that may be determined under any regulations made under clause (b) of subsection (1) as the penalty for a violation shall not be more than twenty-five thousand dollars, in the case of an individual, and one hundred thousand dollars, in the case of any other person.
(a) establish the form of notices of violation;
(b) designate persons or classes of persons who are authorized to issue notices of violation;
(c) establish, in respect of each violation, a short-form description to be used in notices of violation; and
(d) designate persons or classes of persons to conduct reviews under Section 199N.
199D (1) Every person who contravenes or fails to comply with a provision, direction, requirement, decision or order, or term or condition the contravention of which, or the failure to comply with which, is designated to be a violation by a regulation made under clause (a) of subsection (1) of Section 199B commits a violation and is liable to a penalty of an amount to be determined in accordance with the regulations.
(2) The purpose of the penalty is to promote compliance with this Part and not to punish.
199E Where a corporation commits a violation, any director, officer, or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty of an amount to be determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Part.
199F In any proceedings under this Part against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee, or agent or mandatary, of the person, whether or not the employee, or agent or mandatary is identified or proceeded against in accordance with this Part.
199G (1) Where a person designated under clause (b) of Section 199C believes on reasonable grounds that a person has committed a violation, the designated person may issue a notice of violation and cause it to be served on the person.
(2) The notice of violation shall
(a) name the person that is believed to have committed the violation;
(b) set out the relevant facts surrounding the violation;
(c) set out the amount of the penalty for the violation;
(d) inform the person of the person's right, under Section 199L, to request a review with respect to the amount of the penalty or the facts of the violation, and of the prescribed period within which that right is to be exercised;
(e) inform the person of the manner of paying the penalty set out in the notice; and
(f) inform the person that, where the person does not pay the penalty or exercise the person's right referred to in clause (d), the person will be considered to have committed the violation and that the person is liable to the penalty set out in the notice.
199H (1) A person named in a notice of violation does not have a defence by reason that the person
(a) exercised due diligence to prevent the commission of the violation; or
(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.
(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Part applies in respect of a violation to the extent that it is not inconsistent with this Part.
199I A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.
199J (1) Proceeding with any act or omission as a violation under this Part precludes proceeding with it as an offence under this Part, and proceeding with it as an offence under this Part precludes proceeding with it as a violation under this Part.
(2) For greater certainty, a violation is not an offence and, accordingly, Section 4 of the Summary Proceedings Act does not apply in respect of a violation.
199K No notice of violation is to be issued more than two years after the day on which the matter giving rise to the violation occurred.
199M At any time before a request for a review in respect of a notice of violation is received by the Board, a person designated under clause (b) of Section 199C may cancel the notice of violation or correct an error in it.
199N (1) On receipt of a request made under Section 199L, the Board shall conduct the review or cause the review to be conducted by a person designated under clause (d) of Section 199C.
(2) The Board shall conduct the review if the notice of violation was issued by a person designated under clause (d) of Section 199C.
199O (1) The Board or the person conducting the review shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the person committed the violation, or both.
(2) The Board or the person conducting the review shall render a determination and the reasons for it in writing and cause the person who requested the review to be served with a copy of them.
(3) Where the Board or the person conducting the review determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Board or the person, as the case may be, shall correct the amount of the penalty.
(4) Where the Board or the person conducting the review determines that the person who requested the review committed the violation, the person who requested the review is liable to the penalty as set out in the notice issued under Section 199G or as set out in the determination if the amount of the penalty was corrected under subsection (3).
(5) A determination made under this Section is final and binding and, subject to review by the Supreme Court of Nova Scotia, is not subject to appeal or to review by any court.
199P Where the facts of a violation are reviewed, the person who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.
199R A person that neither pays the penalty imposed under this Part nor requests a review in the period referred to in Section 199L is considered to have committed the violation and is liable to the penalty.
(2) No proceedings to recover the debt are to be instituted more than five years after the day on which the debt becomes payable.
199T (1) The Board may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection (1) of Section 199S.
(2) Registration in the Supreme Court of Nova Scotia of a certificate of non-payment issued under subsection (1) has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.
199V The Board may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.
29 Chapter 3 is further amended by adding immediately after Section 200 the following heading:
30 Chapter 3 is further amended by adding immediately after Section 201 the following heading:
31 Schedule IV of Chapter 3, as enacted by Chapter 56 of the Acts of 1988, is amended by striking out "134A" in the second line of the heading and substituting "134AA".
32 Chapter 3 is further amended by adding immediately after Schedule IV the following Schedules:
subsection (3) of Section 158B)
(Subsection (1) of Section 146A, subsection (1) of Section 158A and
subsection (3) of Section 158B)
33 In Sections 33 to 37, "other Act" means Chapter 16 of the Acts of 2013, An Act to Amend Chapter 3 of the Acts of 1987, the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation (Nova Scotia) Act.
34 (1) Where Section 2 of the other Act comes into force before Section 2 of this Act, then upon the coming into force of Section 2 of the other Act, Section 2 of this Act is repealed and the following Section substituted:
(2) Where Section 2 of this Act comes into force before Section 2 of the other Act, then upon the coming into force of Section 2 of this Act, Section 2 of the other Act is repealed and the following Section substituted:
(2) Before a regulation is made under subsection (4) or (5) of Section 202A or subsection (1) of Section 202DV, the Minister as defined in subsection (1) of Section 202A shall consult the federal Minister with respect to the proposed regulation and no regulation shall be so made without the approval of that minister.
(3) Where Section 2 of this Act and Section 2 of the other Act come into force on the same day, Section 2 of this Act is deemed to have come into force immediately before Section 2 of the other Act and, for greater certainty, Section 2 of the other Act is repealed and replaced in accordance with subsection (2).
35 (1) Where clause 9(3)(a) of the other Act comes into force before clause 13(2)(a) of this Act, then upon the coming into force of clause 9(3)(a) of the other Act, clause 13(2)(a) of this Act is repealed and the following clause substituted:
(a) striking out clause (a) and substituting the following clauses:
(aa) a fee or charge payable in accordance with regulations made under Section 30A;
(2) Where clause 13(2)(a) of this Act comes into force before clause 9(3)(a) of the other Act, then upon the coming into force of clause 13(2)(a) of this Act, clause 9(3)(a) of the other Act is repealed and the following clauses substituted:
(a) striking out clause (a) and substituting the following clause:
(aa) striking out clause (b) and substituting the following clause:
(3) Where clause 13(2)(a) of this Act and clause 9(3)(a) of the other Act come into force on the same day, clause 9(3)(a) of the other Act is deemed to have come into force immediately before clause 13(2)(a) of this Act and, for greater certainty, clause 13(2)(a) of this Act is repealed and replaced in accordance with subsection (1).
36 On the first day on which both subsection 19(3) of the other Act and Section 25 of this Act are in force, subsection 191(3) of Chapter 3, as enacted by subsection 19(3) of the other Act, is renumbered as subsection 191(4D).
37 On the first day on which both Section 20 of the other Act and Section 26 of this Act are in force,
(a) Sections 192B to 192E of Chapter 3 are repealed; and
(b) subsection 193(1) of Chapter 3 is repealed and the following subsection substituted:
(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 take any measures that the court considers appropriate to avoid any injury or damage that may result from the act or omission that constituted the offence, or to remedy any injury or damage resulting from it;
(d) 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;
(e) directing the offender to make changes to the offender's environmental management system that are satisfactory to the Board;
(f) 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 remedy any deficiencies revealed during the audit;
(g) 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;
(h) directing the offender to pay to the Board an amount of money that the court considers appropriate for the purpose of conducting research, education and training in matters related to the protection of the environment, conservation of petroleum resources or safety of petroleum operations;
(i) 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;
(j) directing the offender to submit to the Chief Safety Officer, on application by the Chief Safety Officer within three years after the conviction, any information with respect to the offender's activities that the court considers appropriate in the circumstances;
(k) 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;
(l) 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 any prohibition, direction, requirement or condition that is specified in the order;
(m) directing the offender to perform community service, subject to any reasonable conditions that may be imposed by the court;
(n) directing the offender to pay, in the manner specified by the court, an amount of money to environmental, health or other groups to assist in their work;
(o) directing the offender to pay, in the manner specified by the court, an amount of money to an educational institution including for scholarships for students enrolled in studies related to the environment;
(p) 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 Part;
(q) prohibiting the offender from taking measures to acquire an interest or from applying for any new licence or other authorization under this Act during any period that the court considers appropriate.
38 This Act, except Section 11, clause 17(1)(c) and Section 31, comes into force on such day as the Governor in Council orders and declares by proclamation.
This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 2014 Crown in right of Nova Scotia. Created November 5, 2014. Send comments to legc.office@novascotia.ca.
