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

Leave to Open Pipelines

Marginal note:Leave required

• 213 (1) A pipeline or section of a pipeline must not be opened for the transmission of hydrocarbons or any other commodity by a company unless an order granting it leave to do so has been made by the Commission.

• Marginal note:Grant of leave

  (2) Leave may be granted by the Commission under this section only if it is satisfied that the pipeline may safely be opened for transmission.

Exemptions

Marginal note:Orders

• 214 (1) The Commission may, by order, exempt from the application of any or all of the provisions of section 179, subsection 180(1) and sections 182, 198, 199 and 213

  • (a) pipelines or branches of or extensions to pipelines, of not more than 40 kilometres in length;

  • (b) pipelines that have already been constructed; and

  • (c) any tanks, reservoirs, storage or loading facilities, pumps, racks, compressors, interstation communication systems, real or personal property, or immovable or movable, and any connected works.

• Marginal note:Conditions

  (2) In any order made under subsection (1), the Commission may impose any conditions that it considers appropriate.

• Marginal note:Time limit

  (3) If an application for an order under subsection (1) is made, the Commission must, within the time limit specified by the Lead Commissioner, either make an order under that subsection or dismiss the application.

• Marginal note:Maximum time limit

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

• Marginal note:Excluded period

  (5) In the circumstances prescribed by regulations made under section 216, the Lead Commissioner may specify that a period is to be excluded from the calculation of the time limit. The Lead Commissioner must provide reasons for doing so.

• Marginal note:Extension

  (6) The Minister may, by order, grant one or more extensions of the time limit specified under subsection (3).

• Marginal note:Publication

  (7) The Commission must make public the time limit specified under subsection (3), any period that is excluded under subsection (5), the reasons for the exclusion and any extension of time granted under subsection (6).

• Marginal note:Application related to application for certificate

  (8) Despite subsections (3) to (6), if the Lead Commissioner considers that an application for an exemption is related to an application for a certificate in respect of a pipeline, the time limit within which to make an order under subsection (1) or to dismiss the application for an exemption expires on the day on which the certificate is issued or the application for the certificate is dismissed.

• Marginal note:Continuation of jurisdiction and obligation

  (9) A failure by the Commission to make an order under subsection (1) or dismiss the application within the required time limit does not affect its jurisdiction to deal with the application or its obligation to make the order or to dismiss the application, and anything done by it in relation to the application remains valid.

Marginal note:Impact Assessment Act

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

• (a) the time limit within which the Commission must make an order under subsection 214(1) or dismiss the application is seven days after the day on which the decision statement with respect to the designated project is posted on the Internet under section 66 of that Act; and

• (b) subsections 214(3) to (8) do not apply.

Regulations Concerning Time Limits

Marginal note:Power of the Regulator

216 The Regulator may make regulations prescribing, for the purposes of subsection 183(5) or 214(5), the circumstances in which periods may be excluded from the calculation of the time limit.

Construction Despite Presence of Utilities or Navigable Waters

Marginal note:Construction — utility

• 217 (1) A company must not construct a pipeline that passes on, over, along or under a utility unless a certificate has been issued, or an order has been made under section 214, in respect of the pipeline, and

  • (a) the certificate or order contains a condition relating to that utility;

  • (b) the company has been granted leave under subsection (2); or

  • (c) the company is constructing the pipeline in circumstances specified in an order or regulation made under subsection (4).

• Marginal note:Authority to grant leave

  (2) The Commission may, by order, on application, grant a company leave to construct a pipeline that passes on, over, along or under a utility. It may require from the applicant any plans, profiles and other information that it considers necessary to deal with the application.

• Marginal note:Conditions

  (3) The leave may be granted in whole or in part and be subject to any conditions that the Commission considers appropriate.

• Marginal note:Circumstances

  (4) The Regulator may specify circumstances for the purposes of paragraph (1)(c) by regulation, and the Commission may do so by order.

• Marginal note:Leave in emergency cases

  (5) The Commission may grant leave under subsection (2) after construction of the work has commenced if it is satisfied that the work was urgently required and, before the commencement of construction, it was notified of the company’s intention to proceed with the work.

• Marginal note:Definition of utility

  (6) In this section, utility means a highway, an irrigation ditch, a publicly owned or operated drainage system, sewer or dike, an underground telecommunications line or a line for the transmission of hydrocarbons, electricity or any other substance.

Marginal note:Construction or operation — navigable water

218 A person must not construct or operate a pipeline that passes in, on, over, under, through or across a navigable water unless a certificate has been issued, or an order has been made under section 214, in respect of the pipeline.

Marginal note:Effects of recommendation on navigation

• 219 (1) In making its recommendation in a report prepared under section 183, the Commission must also take into account the effects that the issuance of a certificate in respect of a pipeline that passes in, on, over, under, through or across a navigable water might have on navigation, including on the safety of navigation.

• Marginal note:Effects of decision on navigation

  (2) When deciding whether to make an order, give a direction or grant a leave, approval or exemption in respect of a pipeline that passes in, on, over, under, through or across a navigable water, the Commission must take into account the effects that its decision might have on navigation, including on the safety of navigation, in addition to any other factor that it considers appropriate.

Marginal note:Pipeline not work

220 Despite the definition work in section 2 of the Canadian Navigable Waters Act, a pipeline is not a work to which that Act applies.

Marginal note:Regulations

• 221 (1) The Governor in Council may, for purposes related to navigation, on the joint recommendation of the Minister and the Minister of Transport, make regulations respecting sections or parts of pipelines that pass in, on, over, under, through or across a navigable water, including regulations respecting

  • (a) their design, construction or operation;

  • (b) the making of deviations to them;

  • (c) their relocation;

  • (d) the safety and security of their operation; and

  • (e) their abandonment.

• Marginal note:Offence

  (2) Every person who contravenes a regulation made under subsection (1) is guilty of an offence punishable on summary conviction.

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

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

Marginal note:Existing terms and conditions

• 222 (1) Terms and conditions in respect of a pipeline that were, at any time before July 3, 2013, imposed under section 108 of the National Energy Board Act, are considered to be conditions set out in the certificate issued, or order made under section 214, as the case may be, in respect of the pipeline.

• Marginal note:Construction without leave

  (2) If, at any time before July 3, 2013, the Minister of Transport or the National Energy Board had provided, under section 108 of the National Energy Board Act, that leave under that section was not necessary because the pipeline was to be constructed in accordance with certain orders, regulations, plans and specifications, a company must not construct the pipeline other than in accordance with those orders, regulations, plans and specifications or as specified by the Commission.

Marginal note:Offence and punishment

• 223 (1) Every person who contravenes subsection 217(1), section 218 or subsection 222(2) is guilty of an offence and is liable

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

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

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

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

Marginal note:If pipeline affixed to any real property or immovables

• 224 (1) Despite the other provisions of this Act, or any general or Special Act or law, if any section or part of a company’s pipeline passes on, over, along or under a utility, as defined in subsection 217(6) — or passes in, on, over, under, through or across a navigable water — and that section or part of the pipeline has been affixed to any real property or immovable in any of the circumstances referred to in subsection (2),

  • (a) that section or part of the pipeline remains subject to the rights of the company and remains the property of the company as fully as it was before being affixed and does not become part of the real property or immovable of any person other than the company unless otherwise agreed by the company in writing and unless notice of the agreement in writing has been filed with the Regulator; and

  • (b) subject to the other provisions of this Act, the company may create a lien, mortgage, charge or other security, or the company may constitute a hypothec, on that section or part of the pipeline.

• Marginal note:Circumstances

  (2) The following are the circumstances for the purposes of subsection (1):

  • (a) leave has been obtained under subsection 217(2) or (5) in respect of the pipeline;

  • (b) the certificate issued, or the order made under section 214, in respect of the pipeline contains a condition relating to the utility;

  • (c) the pipeline has been constructed in circumstances specified in an order or regulation made under subsection 217(4);

  • (d) a certificate has been issued, or an order has been made under section 214, in respect of the pipeline and the pipeline passes in, on, over, under, through or across a navigable water; and

  • (e) leave has been obtained under section 108 of the National Energy Board Act in respect of the pipeline at any time before July 3, 2013.

Traffic, Tolls and Tariffs

Interpretation

Marginal note:Definition of tariff

225 In sections 226 to 240, tariff means a schedule of tolls, conditions, classifications, practices or rules and regulations applicable to the provision of a service by a company, and includes rules respecting the calculation of tolls.

Commission’s Powers

Marginal note:Orders

226 The Commission may make orders with respect to all matters relating to traffic, tolls or tariffs.