February 20, 2018
The Canadian federal government has finally revealed how it proposes to regulate offshore renewable energy developments in federal waters. On February 8, 2018, the federal government tabled the new Canadian Energy Regulator Act (CERA), Part 2 of Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts. CERA will repeal the National Energy Board Act and replace the National Energy Board with the Canadian Energy Regulator. Part 5 of CERA details how the federal government will regulate offshore renewable energy projects and offshore power lines situate in federal waters.
Following closely on the heels of Nova Scotia’s newly enacted regime for the development of marine renewable energy projects in provincial waters, with CERA the federal government will fill part of the current regulatory gap for offshore renewable energy projects in federal waters. However, CERA doesn’t address certain necessary elements of a federal regime, such as land rights issuance. Further, there is a view that federal-provincial collaboration is the best route to charting a course for the good governance of Canada’s emerging ocean economy; however, CERA is a solely federal regime. Here’s how the federal government proposes it will regulate offshore renewable energy projects and offshore power lines in federal waters.
Regulated Activities. CERA regulates “offshore renewable energy projects” carried on in the “offshore area” and “offshore power lines”.
Commission to Regulate Activities. Under CERA, the new Canadian Energy Regulator will have a Commission composed of up to seven full-time Commissioners, one of whom must be an Indigenous person. It is this Commission that is empowered to regulate offshore renewable energy activities under CERA.
Authorizations Regime. The proposed regime would implement an Authorization system for certain works or activities, and prohibits such activities without an Authorization issued by the Commission. Under CERA, the Commission may, on application, issue an Authorization for works or activities that are proposed to be carried on both:
However, as noted earlier, CERA does not address land rights issuance: the allocation of space in the offshore area for the placement of facilities.
Authorization Application Process. CERA also establishes the process by which a proponent must apply for an Authorization:
Where no Impact Assessment is required, the Commission must make its decision to either issue the Authorization or dismiss the application a maximum of 300 days after the day on which the applicant has provided a complete application. The Minister can, however, extend this time limit and, notably, the Commission’s failure to comply with this time limit doesn’t affect its jurisdiction to deal with the application.
Liability & Financial Requirements. The Act provides for liability and financial requirements that are similar to those of the offshore oil and gas regulatory regime, including:
Please contact your McInnes Cooper lawyer or any member of the Renewable Energy Team @ McInnes Cooper to discuss this topic or any other legal issue.
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