Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act (S.C. 1988, c. 28)

Marginal note:Waste by failure to utilize gas or to use appropriate recovery methods

• 163 (1) When the Chief Conservation Officer on reasonable grounds is of the opinion that waste as defined in paragraph 159(2)(f) or (g) is occurring in the recovery of petroleum from a pool, the Chief Conservation Officer may apply to the Committee for an order requiring the operators within the pool to show cause at a hearing to be held on a day specified in the order why the Committee should not make a direction in respect thereof.

• Marginal note:Hearing

  (2) On the day specified in the order under subsection (1), the Committee shall hold a hearing at which the Chief Conservation Officer, the operators and other interested persons shall be given an opportunity to be heard.

Marginal note:Order

• 164 (1) If, after the hearing referred to in section 163, the Committee is of the opinion that waste as defined in paragraph 159(2)(f) or (g) is occurring in the recovery of petroleum from a pool, the Committee may, by order,

  • (a) direct the introduction of a scheme for the collection, processing, disposition or reinjection of any gas produced from such pool, or

  • (b) direct repressurizing, recycling or pressure maintenance for the pool or any part of the pool and for, or incidental to such purpose, direct the introduction or injection into that pool, or part thereof, of gas, water or other substance,

  and the order may further direct that the pool or part thereof specified in the order be shut in if the requirements of the order are not met or unless a scheme is approved by the Committee and in operation by a date fixed by the order.

• Marginal note:Continuation pending approval of scheme

  (2) Notwithstanding subsection (1), the Committee may permit the continued operation of a pool or any part of a pool after the date fixed by an order under subsection (1) if in the opinion of the Committee a scheme for the repressurizing, recycling or pressure maintenance or the processing, storage or disposal of gas is in course of preparation, but any such continuation of operations is subject to any conditions imposed by the Committee.

Spills and Debris

Definition of spill

• 165 (1) In sections 166 to 170, spill means a discharge, emission or escape of petroleum, other than one that is authorized under subsection 166.5(1), the regulations or any other federal law. It does not include a discharge from a vessel to which Part 8 or 9 of the Canada Shipping Act, 2001 applies or from a ship to which Part 6 of the Marine Liability Act applies.

• Definition of actual loss or damage

  (2) In section 167, 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. It does not include loss of income recoverable under subsection 42(3) of the Fisheries Act.

• Definition of debris

  (3) In sections 167 to 168 and 170, debris means any installation or structure that was put in place in the course of any work or activity required to be authorized under paragraph 142(1)(b) 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.

• Marginal note:Immunity

  (4) Her Majesty in right of Canada incurs no liability whatever to any person arising out of the authorization by regulations made by the Governor in Council of any discharge, emission or escape of petroleum.

Marginal note:Spills prohibited

• 166 (1) No person shall cause or permit a spill on or from any portion of the offshore area.

• Marginal note:Duty to report spills

  (2) Where a spill occurs in any portion of the offshore area, any person who at the time of the spill is carrying on any work or activity related to the exploration for or development or production of petroleum in the area of the spill shall, in the manner prescribed by the regulations, report the spill to the Chief Conservation Officer.

• Marginal note:Duty to take reasonable measures

  (3) Every person required to report a spill under subsection (2) shall, as soon as possible, take all reasonable measures consistent with safety and the protection of health and the environment to prevent any further spill, to repair or remedy any condition resulting from the spill and to reduce or mitigate any damage or danger that results or may reasonably be expected to result from the spill.

• Marginal note:Taking emergency action

  (4) Where the Chief Conservation Officer is satisfied on reasonable grounds that

  • (a) a spill has occurred in any portion of the offshore area and immediate action is necessary in order to effect any reasonable measures referred to in subsection (3), and

  • (b) such action is not being taken or will not be taken under subsection (3),

  the Chief Conservation Officer may take such action or direct that it be taken by such persons as may be necessary.

• Marginal note:Taking over management

  (5) For the purposes of subsection (4), the Chief Conservation Officer may authorize and direct such persons as may be necessary to enter the place where the spill has occurred and take over the management and control of any work or activity being carried on in the area of the spill.

• Marginal note:Managing work or activity

  (6) A person authorized and directed to take over the management and control of any work or activity under subsection (5) shall manage and control that work or activity and take all reasonable measures in relation to the spill that are referred to in subsection (3).

• Marginal note:Costs

  (7) Any costs incurred under subsection (6) shall be borne by the person who obtained an authorization under paragraph 142(1)(b) in respect of the work or activity from which the spill emanated and, until paid, constitute a debt recoverable by action in any court of competent jurisdiction as a debt due to the Board.

• Marginal note:Recovery of costs

  (7.1) Where a person, other than a person referred to in subsection (7), takes action pursuant to subsection (3) or (4), the person may recover from Her Majesty in right of Canada the costs and expenses reasonably incurred by that person in taking the action.

• Marginal note:Appeal

  (8) Section 162 applies, with such modifications as the circumstances require, to any action or measure taken or authorized or directed to be taken under subsections (4) to (6) as if it were taken or authorized or directed to be taken by order under subsection 160(1) and as if such order were not subject to an investigation.

• Marginal note:Personal liability

  (9) No person required, directed or authorized to act under this section is personally liable either civilly or criminally in respect of any act or omission in the course of complying with this section unless it is shown that that person did not act reasonably in the circumstances.

Marginal note:Spill-treating agents

• 166.1 (1) The provisions referred to in Schedule V do not apply to the deposit of a spill-treating agent and those referred to in Schedule VI do not apply in respect of any harm that is caused by the spill-treating agent or by the interaction between the spill-treating agent and the spilled oil, if

  • (a) the authorization issued under paragraph 142(1)(b) permits the use of the spill-treating agent;

  • (b) other than in the case of a small-scale test that meets the prescribed requirements, the Chief Conservation Officer approves in writing the use of the agent in response to the spill and it is used in accordance with any requirements set out in the approval;

  • (c) the agent is used for the purposes of subsection 166(3) or (4); and

  • (d) the agent is used in accordance with the regulations.

• Marginal note:Clarification

  (2) The provisions referred to in Schedule VI continue to apply to the holder of an authorization referred to in paragraph (1)(a) in respect of any harm that is caused by the spill or, despite subsection (1), by the interaction between the spill-treating agent and the spilled oil.

• Marginal note:Net environmental benefit

  (3) Other than in the case of a small-scale test, the Chief Conservation Officer shall not approve the use of a spill-treating agent unless the Officer determines, taking into account any prescribed factors and any factors the Officer considers appropriate, that the use of the spill-treating agent is likely to achieve a net environmental benefit.

Marginal note:Canadian Environmental Protection Act, 1999

166.2 Section 123 and subsections 124(1) to (3) of the Canadian Environmental Protection Act, 1999 do not apply in respect of a spill-treating agent.

Marginal note:Fisheries Act — civil liability

166.3 For the purpose of section 42 of the Fisheries Act, if subsection 36(3) of that Act would have been contravened but for subsection 166.1(1),

• (a) subsection 36(3) of that Act is deemed to apply in respect of the deposit of the spill-treating agent;

• (b) the holder of the authorization referred to in paragraph 166.1(1)(a) is deemed to be the only person referred to in paragraph 42(1)(a) of that Act; and

• (c) those persons who caused or contributed to the spill are deemed to be the only persons referred to in paragraph 42(1)(b) of that Act.

Marginal note:Notice

166.4 The Federal Minister shall, as soon as possible after it is made, notify the Provincial Minister and the Board of the making of the list of spill-treating agents and any amendment to that list.

Marginal note:Scientific research

• 166.5 (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 of the Environment may authorize, and establish conditions for, the deposit of a spill-treating agent, oil or oil surrogate if the Federal Minister has obtained the Provincial Minister’s approval.

• Marginal note:Oil surrogate

  (2) The Minister of the Environment shall not authorize the deposit of an oil surrogate unless that Minister determines that the oil surrogate poses fewer safety, health or environmental risks than oil.

• Marginal note:Non-application

  (3) If the conditions set out in the authorization are met, the provisions referred to in section 166.2 and Schedules V and VI do not apply in respect of the spill-treating agent, oil and oil surrogate required for the research project.

Marginal note:Recovery of loss, damage, costs or expenses

• 167 (1) Where any discharge, emission or escape of petroleum that is authorized by regulation, or any spill, occurs in any portion of the offshore area,

  • (a) all persons to whose fault or negligence the spill or the authorized discharge, emission or escape of petroleum is attributable or who are by law responsible for others to whose fault or negligence the spill or the authorized discharge, emission or escape of petroleum is attributable are jointly and severally liable, to the extent determined according to the degree of the fault or negligence proved against them, for

    • (i) all actual loss or damage incurred by any person as a result of the spill or the authorized discharge, emission or escape of petroleum or as a result of any action or measure taken in relation to the spill or the authorized discharge, emission or escape of petroleum,

    • (ii) the costs and expenses reasonably incurred by the Board or Her Majesty in right of Canada or the Province or any other person in taking any action or measure in relation to the spill or the authorized discharge, emission or escape of petroleum, and

    • (iii) all loss of non-use value relating to a public resource that is affected by a spill or the authorized discharge, emission or escape of petroleum or as a result of any action or measure taken in relation to the spill or the authorized discharge, emission or escape of petroleum; and

  • (b) the person who is required to obtain an authorization under paragraph 142(1)(b) in respect of the work or activity from which the spill or the authorized discharge, emission or escape of petroleum emanated is liable, without proof of fault or negligence, up to the applicable limit of liability that is set out in subsection (2.2) for the actual loss or damage, the costs and expenses and the loss of non-use value described in subparagraphs (a)(i) to (iii).

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

  (2) If, as a result of debris or as a result of any action or measure taken in relation to debris, there is a loss of non-use value relating to a public resource or any person incurs actual loss or damage or if the Board or Her Majesty in right of Canada or the Province reasonably incurs any costs or expenses in taking any action or measure in relation to debris,

  • (a) all persons to whose fault or negligence the debris is attributable or who are by law responsible for others to whose fault or negligence the debris is attributable are jointly and severally liable, to the extent determined according to the degree of the fault or negligence proved against them, for that loss, actual loss or damage, and for those costs and expenses; and

  • (b) the person who is required to obtain an authorization under paragraph 142(1)(b) in respect of the work or activity from which the debris originated is liable, without proof of fault or negligence, up to the applicable limit of liability that is set out in subsection (2.2), for that loss, actual loss or damage, and for those costs and expenses.

• Marginal note:Vicarious liability for contractors

  (2.1) A person who is required to obtain an authorization under paragraph 142(1)(b) and who retains, to carry on a work or activity in respect of which the authorization is required, the services of a contractor to whom paragraph (1)(a) or (2)(a) applies is jointly and severally liable with that contractor for any actual loss or damage, costs and expenses and loss of non-use value described in subparagraphs (1)(a)(i) to (iii) and subsection (2).

• Marginal note:Limit of liability

  (2.2) For the purposes of paragraphs (1)(b) and (2)(b), the limit of liability is $1 billion.

• Marginal note:Increase in limit of liability

  (2.3) Subject to section 6, the Governor in Council may, by regulation, increase the amount referred to in subsection (2.2).

• Marginal note:Liability under another law — paragraph (1)(b) or (2)(b)

  (2.4) If a person is liable under paragraph (1)(b) or (2)(b) with respect to an occurrence and the person is also liable under any other Act, without proof of fault or negligence, for the same occurrence, the person is liable up to the greater of the applicable limit of liability that is set out in subsection (2.2) and the limit up to which the person is liable under the other Act. If the other Act does not set out a limit of liability, the limits set out in subsection (2.2) do not apply.

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

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

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

  (2.6) Only Her Majesty in right of Canada or the Province may bring an action to recover a loss of non-use value described in subsections (1) and (2).

• Marginal note:Claims

  (3) All claims under this section may be sued for and recovered in any court of competent jurisdiction in Canada and shall rank, firstly, in favour of persons incurring actual loss or damage, described in subsections (1) and (2), without preference, secondly, without preference, to meet any costs and expenses described in those subsections and, lastly, to recover a loss of non-use value described in those subsections.

• Marginal note:Saving

  (4) Subject to subsections (2.5) and (2.6), 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 Division or gives rise to liability under this section;

  • (b) any recourse, indemnity or relief available at law to a person who is liable under this section against any other person; or

  • (c) the operation of any applicable law or rule of law that is not inconsistent with this section.

• Marginal note:Limitation period

  (5) Proceedings in respect of claims under this section may be instituted within three years after the day when the loss, damage, costs or expenses occurred but in no case after six years after the day the spill or the discharge, emission or escape of petroleum occurred or, in the case of debris, after the day the installation or structure in question was abandoned or the material in question broke away or was jettisoned or displaced.