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2009, c. 14, s. 126
Related Amendments to the Environmental Violations Administrative Monetary Penalties Act
53. (1) The definition “Environmental Act” in section 2 of the Environmental Violations Administrative Monetary Penalties Act is replaced by the following:
“Environmental Act”
« loi environne-mentale »
“Environmental Act” means the Antarctic Environmental Protection Act, the Canada National Marine Conservation Areas Act, the Canada National Parks Act, the Canada Water Act, the Canada Wildlife Act, the Canadian Environmental Assessment Act, 2012, the Canadian Environmental Protection Act, 1999, the International River Improvements Act, the Migratory Birds Convention Act, 1994, the Saguenay-St. Lawrence Marine Park Act or the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.
(2) Paragraph (a) of the definition “Minister” in section 2 of the Act is replaced by the following:
(a) with respect to violations that relate to the Antarctic Environmental Protection Act, the Canada Water Act, the Canada Wildlife Act, the Canadian Environmental Assessment Act, 2012, the Canadian Environmental Protection Act, 1999, the International River Improvements Act, the Migratory Birds Convention Act, 1994 or the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, the Minister of the Environment; and
54. Section 5 of the Act is amended by adding the following after subsection (3):
Restriction — Canadian Environmental Assessment Act, 2012
(3.1) With respect to the Canadian Environmental Assessment Act, 2012, only a contravention or a failure to comply arising out of section 6, subsection 94(3) or section 97 or 98 of that Act may be designated under paragraph (1)(a).
Consequential Amendments
R.S., c. A-1
Access to Information Act
1992, c. 37, s. 76
55. Schedule II to the Access to Information Act is amended by striking out the reference to
Canadian Environmental Assessment Act
Loi canadienne sur l’évaluation environnementale
and the corresponding reference to “subsection 35(4)”.
56. Schedule II to the Act is amended by adding, in alphabetical order, a reference to
Canadian Environmental Assessment Act, 2012
Loi canadienne sur l’évaluation environnementale (2012)
and a corresponding reference to “subsections 45(4) and (5)”.
R.S., c. E-20; 2001, c. 33, s. 2(F)
Export Development Act
2001, c. 33, s. 12
57. Section 24.1 of the Export Development Act is replaced by the following:
Canadian Environmental Assessment Act, 2012
24.1 Section 68 of the Canadian Environmental Assessment Act, 2012 does not apply when the Minister or the Minister of Finance exercises a power or performs a duty or function under this Act or any regulation made under it, or exercises a power of authorization or approval with respect to the Corporation under any other Act of Parliament or any regulation made under it.
1999, c. 24
First Nations Land Management Act
58. Section 41 of the First Nations Land Management Act is repealed.
2002, c. 29
Species at Risk Act
59. (1) Subsection 79(1) of the Species at Risk Act is replaced by the following:
Notification of Minister
79. (1) Every person who is required by or under an Act of Parliament to ensure that an assessment of the environmental effects of a project is conducted, and every authority who makes a determination under paragraph 67(a) or (b) of the Canadian Environmental Assessment Act, 2012 in relation to a project, must, without delay, notify the competent minister or ministers in writing of the project if it is likely to affect a listed wildlife species or its critical habitat.
(2) Subsection 79(3) of the Act is replaced by the following:
Definitions
(3) The following definitions apply in this section.
“person”
« personne »
“person” includes an association, an organization, a federal authority as defined in subsection 2(1) of the Canadian Environmental Assessment Act, 2012, and any body that is set out in Schedule 3 to that Act.
“project”
« projet »
“project” means
(a) a designated project as defined in subsection 2(1) of the Canadian Environmental Assessment Act, 2012 or a project as defined in section 66 of that Act;
(b) a project as defined in subsection 2(1) of the Yukon Environmental and Socio-economic Assessment Act; or
(c) a development as defined in subsection 111(1) of the Mackenzie Valley Resource Management Act.
2003, c. 20
Antarctic Environmental Protection Act
60. Section 6 of the Antarctic Environmental Protection Act is repealed.
2005, c. 48
First Nations Oil and Gas and Moneys Management Act
61. Subsection 2(2) of the First Nations Oil and Gas and Moneys Management Act is replaced by the following:
Expressions in Canadian Environmental Assessment Act, 2012
(2) In this Act, “environment” and “environmental effects” have the same meaning as in subsection 2(1) of the Canadian Environmental Assessment Act, 2012.
62. Subsection 63(3) of the Act is replaced by the following:
Comparable standards
(3) The requirements of any regulations made under subsection (1) must be generally comparable with those applicable in similar circumstances under the Canadian Environmental Assessment Act, 2012.
2005, c. 53
First Nations Commercial and Industrial Development Act
63. Paragraph 3(2)(n) of the First Nations Commercial and Industrial Development Act is replaced by the following:
(n) require that an assessment of the envi-ronmental effects of the undertakings be undertaken in circumstances where the Canadian Environmental Assessment Act, 2012 does not apply, and establish a procedure to be followed in such an assessment;
Coordinating Amendments
This Act
64. On the first day on which both sections 52 and 141 of this Act are in force, subparagraph 5(1)(a)(i) of the Canadian Environmental Assessment Act, 2012 is replaced by the following:
(i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act,
Bill S-8
65. If Bill S-8, introduced in the 1st session of the 41st Parliament and entitled the Safe Drinking Water for First Nations Act, receives royal assent, then, on the first day on which both paragraph 5(1)(r) of that Act and section 52 of this Act are in force, that paragraph 5(1)(r) is replaced by the following:
(r) require that an assessment of the environmental effects of drinking water systems or waste water systems be undertaken in circumstances where the Canadian Environmental Assessment Act, 2012 does not apply, and establish a procedure to be followed in such assessments.
Repeal
Repeal
66. The Canadian Environmental Assessment Act, chapter 37 of the Statutes of Canada, 1992, is repealed.
Coming into Force
Order in council
67. Sections 52 to 63 and 66 come into force on a day to be fixed by order of the Governor in Council.
Division 2
R.S., c. N-7
National Energy Board Act
Amendments to the Act
68. The heading before section 2 of the French version of the National Energy Board Act is replaced by the following:
DÉFINITIONS ET INTERPRÉTATION
69. Section 2 of the Act is amended by adding the following in alphabetical order:
“navigable water”
« eaux navigables »
“navigable water” has the same meaning as in section 2 of the Navigable Waters Protection Act;
“penalty”
« pénalité »
“penalty” means an administrative monetary penalty imposed under this Act for a violation;
70. Subsection 4(2) of the Act is repealed.
1990, c. 7, s. 4(1)
71. (1) Subsection 6(1) of the English version of the Act is replaced by the following:
Chairperson and Vice-chairperson
6. (1) The Governor in Council shall designate one of the members to be Chairperson of the Board and another of the members to be Vice-chairperson of the Board.
(2) 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 and, if the Board sits in a panel, assigns members to the panel and a member to preside over it. The Chairperson also has supervision over and direction of the work of the Board’s staff.
Directives regarding timeliness
(2.1) To ensure that an application before the Board is dealt with in a timely manner, the Chairperson may issue directives to the members authorized to deal with the application regarding the manner in which they are to do so.
Measures to meet time limit
(2.2) If the Chairperson is of the opinion that a time limit imposed under any of sections 52, 58 and 58.16 is not likely to be met in respect of an application, the Chairperson may take any measure that the Chairperson considers appropriate to ensure that the time limit is met, including
(a) removing any or all members of the panel authorized to deal with the application;
(b) authorizing one or more members to deal with the application;
(c) increasing or decreasing the number of members dealing with the application; and
(d) specifying the manner in which section 55.2 is to be applied in respect of the application.
Clarification
(2.3) For greater certainty, the power referred to in subsection (2.2) includes the power to designate a single member, including the Chairperson, as the sole member who is authorized to deal with the application.
Effects of measure
(2.4) If the composition of the panel dealing with an application is changed as a result of any measure taken under subsection (2.2),
(a) evidence and representations received by the Board in relation to the application before the taking of the measure are considered to have been received after the taking of the measure; and
(b) the Board is bound by every decision made by the Board in relation to the application before the taking of the measure unless the Board elects to review, vary or rescind it.
Inconsistencies
(2.5) In the event of any inconsistency between any directive issued under subsection (2.1) or measure taken under subsection (2.2) and any rule made under section 8, the directive or measure prevails to the extent of the inconsistency.
1990, c. 7, s. 4(2)
(3) Subsections 6(3) and (4) of the English version of the Act are replaced by the following:
Vice-chairperson’s duties
(3) If the Chairperson is absent or unable to act or if the office is vacant, the Vice-chairperson has all the Chairperson’s powers and functions.
Acting Chairperson
(4) The Board may authorize one or more of its members to act as Chairperson for the time being in the event that the Chairperson and Vice-chairperson are absent or unable to act or if the offices are vacant.
72. Section 7 of the Act is amended by adding the following after subsection (2):
Exception
(2.1) Despite subsection (2), if the number of members authorized to deal with an application as a result of any measure taken by the Chairperson under subsection 6(2.2) is less than three, the number of members authorized by the Chairperson to deal with the application constitutes a quorum of the Board.
73. Section 8 of the Act is amended by adding “and” at the end of paragraph (b) and by repealing paragraph (c).
74. Section 11 of the Act is amended by adding the following after subsection (3):
Expeditious proceedings
(4) Subject to subsections 6(2.1) and (2.2), all applications and proceedings before the Board are to be dealt with as expeditiously as the circumstances and considerations of fairness permit, but, in any case, within the time limit provided for under this Act, if there is one.
1990, c. 7, s. 6
75. Section 14 of the Act is replaced by the following:
Authorization regarding Board’s powers, duties and functions
14. (1) The Chairperson may authorize one or more members, either jointly or severally, to exercise any of the Board’s powers or to perform any of the Board’s duties and functions under this Act, except those under subsection 45(3), sections 46, 47, 48, 52 to 54, 56, 58, 58.11, 58.14, 58.16, 58.32, 58.35, 58.37 and 129 and under Parts IV, VI, VII and IX.
Presumption
(2) Any power exercised or any duty or function performed by a member or members under the authorization is considered to have been exercised or performed by the Board.
1990, c. 7, s. 7
76. Subsection 15(1) of the Act is replaced by the following:
Powers of members authorized to report
15. (1) The Chairperson may authorize one or more of the members to report to the Board on any question or matter arising in connection with the business of or any application or proceeding before the Board, and the member or members so authorized have all the powers of the Board for the purpose of taking evidence or acquiring the necessary information for the purpose of making the report and the recommendations contained in it as to the decision or order of the Board to be made on the question or matter.
1990, c. 7, s. 8
77. Section 16 of the Act is replaced by the following:
Incapacity of single member
16. (1) If a member who is conducting a hearing under an authorization under section 14 or 15 becomes incapacitated, resigns or dies during the hearing or after the conclusion of the hearing but before making a decision or report, the Chairperson may authorize another member
(a) to continue the hearing and to make a decision or report to the Board, if the incapacity, resignation or death occurs during the hearing; or
(b) to examine all the evidence presented at the hearing and to make a decision, or report to the Board, based on the evidence, if the incapacity, resignation or death occurs after the conclusion of the hearing but before a decision is given or a report to the Board is made.
Incapacity of member of quorum
(2) If a hearing is being conducted by three members and one member becomes incapacitated, resigns or dies during the hearing or after the conclusion of it but before a decision is given,
(a) the Chairperson may authorize another member to replace the incapacitated or deceased member, or the member who resigned, for the rest of the hearing and to participate in the decision, if the incapacity, resignation or death occurs during the hearing; or
(b) if the incapacity, resignation or death occurs after the conclusion of the hearing but before a decision is given, the remaining members may, if unanimous, give a decision as if the incapacitated or deceased member, or the member who resigned, were present and participating in the decision.
Incapacity of member — Part III certificate
(3) If a hearing in relation to an application for a certificate under Part III is being conducted by three members and one member becomes incapacitated, resigns or dies during the hearing or after its conclusion but before the report that is required to be prepared under subsection 52(1) is finalized,
(a) the Chairperson may authorize another member to replace the incapacitated or deceased member, or the member who resigned, for the rest of the hearing and to participate in the finalizing of the report, if the incapacity, resignation or death occurs during the hearing; or
(b) if the incapacity, resignation or death occurs after the conclusion of the hearing but before the report is finalized, the remaining members may, if unanimous, finalize the report as if the incapacitated or deceased member, or the member who resigned, were present and participating in its finalization.
Effects of authorization
(4) If a member is authorized under paragraph (2)(a) or (3)(a) to replace a member,
(a) evidence and representations received by the Board in the course of the hearing before the replacement are considered to have been received after the replacement; and
(b) the Board is bound by every decision made by the Board in the course of the hearing before the replacement unless the Board elects to review, vary or rescind a decision.
Chairperson’s powers
(5) Nothing in subsections (1) to (3) precludes the Chairperson from taking a measure under subsection 6(2.2).
Member ceasing to hold office
(6) A person who resigns or otherwise ceases to hold office as a member may, if authorized to do so by the Chairperson and on any terms and conditions that the Chairperson prescribes, continue to inquire into, hear and conclude any proceeding to which that person was assigned while that person was a member and the person shall for that purpose be considered to continue to be a member.
78. Section 19 of the Act is amended by adding the following after subsection (1):
Non-application
(1.1) Subsection (1) does not apply in respect of an application for a certificate under Part III.
79. Section 20 of the Act is renumbered as subsection 20(1) and is amended by adding the following:
Non-application
(2) Subsection (1) does not apply in respect of an application for a certificate under Part III.
80. Section 22 of the Act is amended by adding the following after subsection (3):
Report not decision or order
(4) For greater certainty, for the purpose of this section, no report submitted by the Board under section 52 or 53 — or under section 29 or 30 of the Canadian Environmental Assessment Act, 2012 — and no part of any such report, is a decision or order of the Board.
1990, c. 7, s. 12
81. Subsections 24(1) and (2) of the Act are replaced by the following:
Public hearings
24. (1) Subject to subsection (2), hearings before the Board with respect to the issuance, revocation or suspension of certificates or for leave to abandon the operation of a pipeline shall be public.
Exception
(2) A public hearing need not be held where the Board, on the application or with the consent of the holder, revokes or suspends
(a) a certificate issued in respect of an international or interprovincial power line, regardless of whether the power line has been brought into commercial operation under that certificate; or
(b) a certificate issued in respect of a pipeline, if the pipeline has not been brought into commercial operation under that certificate.
82. Subsection 48(3) of the Act is replaced by the following:
Offence
(3) Every person who contravenes an order made under subsection (1) or (1.1) or a regulation made under subsection (2) is guilty of an offence and liable
(a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or
(b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.
Application of subsections 121(2) to (5)
(4) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, to an offence referred to in subsection (3).
1990, c. 7, ss. 18 and 19; 1996, c. 10, s. 238
83. Sections 52 to 54 of the Act are replaced by the following:
Report
52. (1) If the Board is of the opinion that an application for a certificate in respect of a pipeline is complete, it shall prepare and submit to the Minister, and make public, a report setting out
(a) its recommendation as to whether or not the certificate should be issued for all or any portion of the pipeline, taking into account whether the pipeline is and will be required by the present and future public convenience and necessity, and the reasons for that recommendation; and
(b) regardless of the recommendation that the Board makes, all the terms and conditions that it considers necessary or desirable in the public interest to which the certificate will be subject if the Governor in Council were to direct the Board to issue the certificate, including terms or conditions relating to when the certificate or portions or provisions of it are to come into force.
Factors to consider
(2) In making its recommendation, the Board shall have regard to all considerations that appear to it to be directly related to the pipeline and to be relevant, and may have regard to the following:
(a) the availability of oil, gas or any other commodity to the pipeline;
(b) the existence of markets, actual or potential;
(c) the economic feasibility of the pipeline;
(d) the financial responsibility and financial structure of the applicant, the methods of financing the pipeline and the extent to which Canadians will have an opportunity to participate in the financing, engineering and construction of the pipeline; and
(e) any public interest that in the Board’s opinion may be affected by the issuance of the certificate or the dismissal of the application.
Environmental assessment
(3) If the application relates to a designated project within the meaning of section 2 of the Canadian Environmental Assessment Act, 2012, the report must also set out the Board’s environmental assessment prepared under that Act in respect of that project.
Time limit
(4) The report must be submitted to the Minister within the time limit specified by the Chairperson. The specified time limit must be no longer than 15 months after the day on which the applicant has, in the Board’s opinion, provided a complete application. The Board shall make the time limit public.
Excluded period
(5) If the Board requires the applicant to provide information or undertake a study with respect to the pipeline and the Board, with the Chairperson’s approval, 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
(6) The Board shall make public the dates of the beginning and ending of the period referred to in subsection (5) as soon as each of them is known.
Extension
(7) 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 the time limit by any additional period or periods of time.
Minister’s directives
(8) To ensure that the report is prepared and submitted in a timely manner, the Minister may, by order, issue a directive to the Chairperson that requires the Chairperson to
(a) specify under subsection (4) a time limit that is the same as the one specified by the Minister in the order;
(b) issue a directive under subsection 6(2.1), or take any measure under subsection 6(2.2), that is set out in the order; or
(c) issue a directive under subsection 6(2.1) that addresses a matter set out in the order.
Order binding
(9) Orders made under subsection (7) are binding on the Board and those made under subsection (8) are binding on the Chairperson.
Publication
(10) A copy of each order made under subsection (8) must be published in the Canada Gazette within 15 days after it is made.
Report is final and conclusive
(11) Subject to sections 53 and 54, the Board’s report is final and conclusive.
Order to reconsider
53. (1) After the Board has submitted its report under section 52, the Governor in Council may, by order, refer the recommendation, or any of the terms and conditions, set out in the report back to the Board for reconsideration.
Factors and time limit
(2) The order may direct the Board to conduct the reconsideration taking into account any factor specified in the order and it may specify a time limit within which the Board shall complete its reconsideration.
Order binding
(3) The order is binding on the Board.
Publication
(4) A copy of the order must be published in the Canada Gazette within 15 days after it is made.
Obligation of Board
(5) The Board shall, before the expiry of the time limit specified in the order, if one was specified, reconsider its recommendation or any term or condition referred back to it, as the case may be, and prepare and submit to the Minister a report on its reconsideration.
Contents of report
(6) In the reconsideration report, the Board shall
(a) if its recommendation was referred back, either confirm the recommendation or set out a different recommendation; and
(b) if a term or condition was referred back, confirm the term or condition, state that it no longer supports it or replace it with another one.
Terms and conditions
(7) Regardless of what the Board sets out in the reconsideration report, the Board shall also set out in the report all the terms and conditions, that it considers necessary or desirable in the public interest, to which the certificate would be subject if the Governor in Council were to direct the Board to issue the certificate.
Report is final and conclusive
(8) Subject to section 54, the Board’s reconsideration report is final and conclusive.
Reconsideration of report under this section
(9) After the Board has submitted its report under subsection (5), the Governor in Council may, by order, refer the Board’s recommendation, or any of the terms or conditions, set out in the report, back to the Board for reconsideration. If it does so, subsections (2) to (8) apply.
Order regarding issuance or non-issuance
54. (1) After the Board has submitted its report under section 52 or 53, the Governor in Council may, by order,
(a) direct the Board to issue a certificate in respect of the pipeline or any part of it and to make the certificate subject to the terms and conditions set out in the report; or
(b) direct the Board to dismiss the application for a certificate.
Reasons
(2) The order must set out the reasons for making the order.
Time limit
(3) The order must be made within three months after the Board’s report under section 52 is submitted to the Minister. The Governor in Council may, on the recommendation of the Minister, by order, extend that time limit by any additional period or periods of time. If the Governor in Council makes an order under subsection 53(1) or (9), the period that is taken by the Board to complete its reconsideration and to report to the Minister is not to be included in the calculation of the time limit.
Order is final and conclusive
(4) Every order made under subsection (1) or (3) is final and conclusive and is binding on the Board.
Obligation of Board
(5) The Board shall comply with the order made under subsection (1) within seven days after the day on which it is made.
Publication
(6) A copy of the order made under subsection (1) must be published in the Canada Gazette within 15 days after it is made.
Application for judicial review
55. (1) Judicial review by the Federal Court of Appeal with respect to any order made under subsection 54(1) is commenced by making an application for leave to the Court.
Application
(2) The following rules govern an application under subsection (1):
(a) the application must be filed in the Registry of the Federal Court of Appeal (“the Court”) within 15 days after the day on which the order is published in the Canada Gazette;
(b) a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice; and
(c) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance.
Continuation of jurisdiction and obligation
55.1 (1) A failure by the Board to comply with subsection 52(1) or 53(5) within the required time limit does not affect its jurisdiction to deal with the application or its obligation to submit the report, and anything done by it in relation to the application remains valid.
Governor in Council’s powers
(2) Despite subsection 54(3), the Governor in Council may make an order under subsection 54(1) after the expiry of the time limit for doing so.
Representations
55.2 On an application for a certificate, the Board shall consider the representations of any person who, in the Board’s opinion, is directly affected by the granting or refusing of the application, and it may consider the representations of any person who, in its opinion, has relevant information or expertise. A decision of the Board as to whether it will consider the representations of any person is conclusive.
84. Section 58 of the Act is amended by adding the following after subsection (3):
Time limit
(4) If an application for an order under subsection (1) is made, the Board shall, within the time limit specified by the Chairperson, either make an order under that subsection or dismiss the application.
Maximum time limit and obligation to make it public
(5) The time limit specified by the Chairperson must be no longer than 15 months after the day on which the applicant has, in the opinion of the Board, provided a complete application. The Board shall make the time limit public.
Environmental assessment
(6) If the application relates to a designated project within the meaning of section 2 of the Canadian Environmental Assessment Act, 2012, the Board shall also, within the time limit,
(a) prepare a report, as required by paragraph 22(b) of that Act, with respect to its environmental assessment of the designated project; and
(b) comply with subsections 27(1) and 54(1) of that Act with respect to that assessment.
Excluded period — applicant
(7) If the Board requires the applicant to provide information or undertake a study with respect to the pipeline or anything referred to in paragraph (1)(b) to which the application relates and the Board, with the Chairperson’s approval, 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
(8) The Board shall make public the dates of the beginning and ending of the period referred to in subsection (7) as soon as each of them is known.
Excluded period — Governor in Council
(9) If the Board has referred a matter to the Governor in Council under subsection 52(2) of the Canadian Environmental Assessment Act, 2012, the period that begins on the day on which the reference is made and ends on the day on which the Governor in Council makes a decision in relation to the matter is not included in the calculation of the time limit.
Extension
(10) 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 the time limit by any additional period or periods of time.
Continuation of jurisdiction and obligation
(11) A failure by the Board to comply with subsection (4) 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.
1990, c. 7, s. 23
85. (1) Subsection 58.16(2) of the Act is replaced by the following:
Criteria
(2) In deciding whether to issue a certificate, the Board shall have regard to all considerations that appear to it to be directly related to the line and relevant.
(2) Section 58.16 of the Act is amended by adding the following after subsection (3):
Time limit
(4) The Board shall, within the time limit specified by the Chairperson,
(a) decide that the certificate should be issued and recommend to the Minister that the Governor in Council approve the issuance of the certificate; or
(b) decide that no certificate is to be issued and dismiss the application in respect of the line.
Maximum time limit and obligation to make it public
(5) The time limit specified by the Chairperson must be no longer than 15 months after the day on which the applicant has, in the Board’s opinion, provided a complete application. The Board shall make the time limit public.
Environmental assessment
(6) If the application relates to a designated project within the meaning of section 2 of the Canadian Environmental Assessment Act, 2012, the Board shall also, within the time limit,
(a) prepare a report, as required by paragraph 22(b) of that Act, with respect to its environmental assessment of the designated project; and
(b) comply with subsection 27(1) of that Act with respect to that assessment.
Excluded period
(7) If the Board requires the applicant to provide information or undertake a study with respect to the line and the Board, with the Chairperson’s approval, 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
(8) The Board shall make public the dates of the beginning and ending of the period referred to in subsection (7) as soon as each of them is known.
Extension
(9) 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 the time limit by any additional period or periods of time.
Time limit — Governor in Council
(10) If the Board makes the recommendation referred to in paragraph (4)(a), the Governor in Council may, within three months after the making of that recommendation, either approve the issuance of the certificate or refuse to approve its issuance. The Governor in Council may extend the time limit for doing so for any additional period or periods of time.
Obligation of Board
(11) If the Governor in Council approves the issuance of the certificate, the Board shall, within seven days after the day on which the approval was given, issue the certificate and comply with subsection 54(1) of the Canadian Environmental Assessment Act, 2012.
Continuation of jurisdiction and obligation
(12) A failure by the Board to comply with subsection (4) within the required time limit does not affect its jurisdiction to deal with the application or its obligation to make a decision as to whether a certificate should be issued or to dismiss the application, and anything done by it in relation to the application remains valid.
Governor in Council’s power
(13) Despite subsection (10), the Governor in Council may approve the issuance of the certificate or refuse to approve its issuance after the expiry of the time limit for doing so.
1990, c. 7, s. 23
86. Section 58.27 of the Act is replaced by the following:
Application of certain provisions
58.27 (1) Sections 32 to 45 and 48 and Part V, except sections 74, 76 to 78, 108 to 111.3, 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 certificate issued in respect of the line;
(b) a “pipeline” or “line” were a reference to the international or interprovincial power line; and
(c) “hydrocarbons” were a reference to electricity.
Application of section 45 — navigable waters
(2) If a deviation, change or alteration is required to be made to a portion of an international power line by the holder of a permit or certificate issued in respect of the power line and the deviation, change or alteration passes in, on, over, under, through or across a navigable water, section 45 also applies to that portion of the power line as if each reference in that section to
(a) a “company” were a reference to the holder of the permit or certificate; and
(b) a “pipeline” were a reference to the international power line.
Application of certain provisions
58.271 Sections 32 to 45 and 48 and Part V, except sections 74, 76 to 78, 108 to 111.3, 114 and 115, apply in respect of international power lines in respect of which a certificate was issued, or an order made under subsection 58(2), before June 1, 1990 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;
(b) a “pipeline” or “line” were a reference to the international power line; and
(c) “hydrocarbons” were a reference to electricity.
1990, c. 7, s. 23; 1996, c. 10, ss. 239 and 240
87. Sections 58.28 to 58.3 of the Act are replaced by the following:
Construction — facility
58.28 (1) Subject to subsection (4), no person shall construct an international or interprovincial power line that passes on, over, along or under a facility unless a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line and
(a) the permit or certificate contains a term or condition relating to that facility;
(b) the person has been granted leave under subsection (2); or
(c) the person is constructing the power line in circumstances specified in an order or regulation made under subsection (4).
Authority to grant leave
(2) The Board may, by order, on application, grant a person leave to construct an international or interprovincial power line that passes on, over, along or under a facility. It may require from the applicant any plans, profiles and other information that it considers necessary to consider the application.
Terms and conditions
(3) The leave may be granted in whole or in part and be subject to terms and conditions.
Circumstances
(4) The Board may make orders or regulations specifying circumstances for the purposes of paragraph (1)(c).
Leave in emergency cases
(5) The Board may grant leave under subsection (2) after construction of the proposed work has commenced if it is satisfied that the work was urgently required and, before the commencement of construction, it was notified of the person’s intention to proceed with the proposed work.
Construction or operation — navigable water
58.29 No person shall construct or operate an interprovincial power line in respect of which an order made under section 58.4 is in force — or an international power line — that passes in, on, over, under, through or across a navigable water unless a permit referred to in section 58.11 or a certificate has been issued in respect of the power line.
Effects on navigation
58.3 In addition to any other factor that it considers appropriate, the Board shall take into account the effects that its decision might have on navigation, including safety of navigation, when deciding whether to issue a certificate or permit, make an order, give a direction or grant a leave, approval or exemption in respect of an interprovincial power line in respect of which an order made under section 58.4 is in force — or an international power line — that passes in, on, over, under, through or across a navigable water.
Power lines not works
58.301 Despite the definition “work” in section 2 of the Navigable Waters Protection Act, neither an interprovincial power line in respect of which an order made under section 58.4 is in force nor an international power line is a work to which that Act applies.
Regulations
58.302 (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 interprovincial power lines in respect of which orders made under section 58.4 are in force — or sections or parts of international power lines — 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, changes or alterations to them;
(c) their diversion or relocation;
(d) the safety and security of their operation; and
(e) the abandonment of their operation.
Offence
(2) Every person who contravenes a regulation made under subsection (1) is guilty of an offence punishable on summary conviction.
Application
58.303 (1) Sections 58.28, 58.31 and 58.32 apply only in respect of
(a) international power lines in respect of which an election is filed under section 58.23;
(b) those portions of international power lines that are within a province in which no provincial regulatory agency is designated under section 58.17;
(c) international power lines where the facility in question is within the legislative authority of Parliament; and
(d) interprovincial power lines in respect of which an order made under section 58.4 is in force.
Application of section 58.31 — navigable waters
(2) Section 58.31 also applies in respect of the portion of an international power line for which a permit or certificate is in force that passes in, on, over, under, through or across a navigable water.
Application of section 58.32 — navigable waters
(3) Section 58.32 also applies in respect of an international power line for which a permit or certificate is in force if the Board is of the opinion that the diversion or relocation of the power line in, on, over, under, through or across a navigable water is necessary to facilitate the construction, reconstruction or relocation of a facility.
Existing terms and conditions
58.304 (1) Terms and conditions in respect of any international or interprovincial power line that were, at any time before the coming into force of this section, imposed under section 58.29 or 108, as that section read from time to time before the coming into force of this section — or imposed by the Minister of Transport under the Navigable Waters Protection Act — apply as if they were terms and conditions set out in the certificate or permit, as the case may be, issued in respect of the power line.
Construction without leave
(2) If, at any time before the coming into force of this section, the Minister of Transport had provided, under section 58.3 or 108, as that section read from time to time before the coming into force of this section, that leave under that section 58.3 or 108, as the case may be, was not necessary because the power line was to be constructed in accordance with certain orders, regulations, plans and specifications, no person shall construct the power line otherwise than in accordance with those orders, regulations, plans and specifications or as specified by the Board.
Construction without leave
(3) If, at any time before the coming into force of this section, the Board had provided, under section 58.33 or 108, as that section read from time to time before the coming into force of this section, that leave under section 58.29 or 108, as the case may be, as that section read from time to time before the coming into force of this section, was not necessary because the power line was to be constructed in accordance with certain orders or regulations, no person shall construct the power line otherwise than in accordance with those orders or regulations or as specified by the Board.
Offence and punishment
58.305 (1) Every person who contravenes subsection 58.28(1), section 58.29 or subsection 58.304(2) or (3) is guilty of an offence and is liable
(a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or
(b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.
Application of subsections 121(2) to (5)
(2) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, in respect of an offence under this section.
1990, c. 7, s. 23
88. Paragraph 58.33(c) of the Act is replaced by the following:
(c) the circumstances in which or conditions under which leave from the Board under section 58.31 is not necessary.
1996, c. 10, s. 243.1
89. (1) Paragraph 71(2)(b) of the Act is replaced by the following:
(b) a company that has been issued a certificate under Part III authorizing the transmission of a commodity other than oil.
1996, c. 10, s. 243.1
(2) The portion of subsection 71(3) of the Act before paragraph (a) is replaced by the following:
Extension of facilities
(3) The Board may, if it considers it necessary or desirable to do so in the public interest, require a company operating a pipeline for the transmission of hydrocarbons, or for the transmission of any other commodity authorized by a certificate issued under Part III, to provide adequate and suitable facilities for
90. Subsection 77(4) of the Act is replaced by the following:
Exceptions
(4) Subsections (1) to (3) do not apply to any of the following:
(a) in the case of a pipeline:
(i) anything done under leave obtained under subsection 108(2) or (5) in respect of the pipeline,
(ii) any section or part of the pipeline that passes on, over, along or under a utility, as defined in subsection 108(6), if a certificate has been issued, or an order has been made under section 58, in respect of the pipeline and the certificate or order contains a term or condition relating to that utility,
(iii) any section or part of the pipeline that passes in, on, over, under, through or across a navigable water if a certificate has been issued, or an order has been made under section 58, in respect of the pipeline, and
(iv) anything done under any leave obtained under section 108 at any time before the coming into force of this subsection, as that section read from time to time before the coming into force of this subsection; and
(b) in the case of a power line to which this section applies by reason of section 58.38:
(i) anything done under leave obtained under subsection 58.28(2) or (5) in respect of the power line,
(ii) in the case of a power line that is an interprovincial power line in respect of which an order made under section 58.4 is in force,
(A) any section or part of the power line that passes on, over, along or under a facility if a certificate has been issued in respect of the power line and the certificate contains a term or condition relating to that facility, or
(B) any section or part of the power line that passes in, on, over, under, through or across a navigable water if a certificate has been issued in respect of the power line,
(iii) in the case of a power line that is an international power line,
(A) any section or part of the power line that passes on, over, along or under a facility if a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line and the permit or certificate contains a term or condition relating to that facility, or
(B) any section or part of the power line that passes in, on, over, under, through or across a navigable water if a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line, and
(iv) anything done under any leave obtained under section 108 at any time before the coming into force of this subsection, as that section read from time to time before the coming into force of this subsection.
1990, c. 7, s. 26(2) and s. 27; 1996, c. 10, s. 244; 2001, c. 4, s. 105; 2004, c. 25, s. 161
91. Sections 108 to 111 of the Act are replaced by the following:
Construction — utility
108. (1) Subject to subsection (4), no company shall 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 58, in respect of the pipeline, and
(a) the certificate or order contains a term or 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).
Authority to grant leave
(2) The Board 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.
Terms and conditions
(3) The leave may be granted in whole or in part and be subject to terms and conditions.
Circumstances
(4) The Board may make orders or regulations specifying circumstances for the purposes of paragraph (1)(c).
Leave in emergency cases
(5) The Board may grant leave under subsection (2) after construction of the proposed work has commenced if 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 proposed work.
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 telegraph or telephone line or a line for the transmission of hydrocarbons, electricity or any other substance.
Construction or operation — navigable water
109. No person shall 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 58, in respect of the pipeline.
Effects of recommendation on navigation
110. (1) In addition to any other factor that it considers appropriate, the Board shall 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 safety of navigation, when making its recommendation in a report prepared under subsection 52(1).
Effects of decision on navigation
(2) In addition to any other factor that it considers appropriate, the Board shall take into account the effects that its decision might have on navigation, including safety of navigation, 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.
Pipeline not work
111. Despite the definition “work” in section 2 of the Navigable Waters Protection Act, a pipeline is not a work to which that Act applies.
Regulations
111.1 (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, changes or alterations to them;
(c) their diversion or relocation;
(d) the safety and security of their operation; and
(e) the abandonment of their operation.
Offence
(2) Every person who contravenes a regulation made under subsection (1) is guilty of an offence punishable on summary conviction.
Existing terms and conditions
111.2 (1) Terms and conditions in respect of a pipeline that were, at any time before the coming into force of this section, imposed under section 108, as that section read from time to time before the coming into force of this section, are considered to be terms and conditions set out in the certificate issued, or order made under section 58, as the case may be, in respect of the pipeline.
Construction without leave
(2) If, at any time before the coming into force of this section, the Minister of Transport or the Board had provided, under section 108, as that section read from time to time before the coming into force of this section, that leave under that section was not necessary because the pipeline was to be constructed in accordance with certain orders, regulations, plans and specifications, no company shall construct the pipeline otherwise than in accordance with those orders, regulations, plans and specifications or as specified by the Board.
Offence and punishment
111.3 (1) Every person who contravenes subsection 108(1), section 109 or subsection 111.2(2) is guilty of an offence and is liable
(a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or
(b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.
Application of subsections 121(2) to (5)
(2) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, in respect of an offence under this section.
If pipeline affixed to any real property or immovables
111.4 (1) Despite this Act or any other general or Special Act or law to the contrary, if any section or part of a pipeline passes on, over, along or under a utility, as defined in subsection 108(6) — or passes in, on, over or under 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 so 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 Secretary; and
(b) subject to the 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.
Circumstances
(2) The following are the circumstances for the purposes of subsection (1):
(a) in the case of the pipeline:
(i) leave has been obtained under subsection 108(2) or (5) in respect of the pipeline,
(ii) the certificate issued, or the order made under section 58, in respect of the pipeline contains a term or condition relating to the utility,
(iii) the pipeline has been constructed in circumstances specified in an order or regulation made under subsection 108(4),
(iv) a certificate has been issued, or an order has been made under section 58, in respect of the pipeline and the pipeline passes in, on, over or under a navigable water, and
(v) leave has been obtained under section 108 in respect of the pipeline at any time before the coming into force of this subsection, as that section read from time to time before the coming into force of this subsection; and
(b) in the case of the power line to which this section applies by reason of section 58.27,
(i) leave has been obtained under subsection 58.28(2) or (5) in respect of the power line,
(ii) the permit referred to in section 58.11, or the certificate, issued in respect of the power line contains a term or condition relating to that utility,
(iii) the power line has been constructed in circumstances specified in an order or regulation made under subsection 58.28(4),
(iv) a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line and the power line passes in, on, over or under a navigable water, and
(v) leave has been obtained under section 108 in respect of the power line at any time before the coming into force of this subsection, as that section read from time to time before the coming into force of this subsection.
1990, c. 7, s. 28
92. (1) Paragraph 112(5)(c) of the Act is replaced by the following:
(c) the circumstances in which or conditions under which leave under subsection (1) or (2) is not necessary.
(2) Section 112 of the Act is amended by adding the following after subsection (7):
Offence
(8) Every person who contravenes subsection (1) or (2), a direction made under subsection (4) or an order or regulation made under subsection (5) is guilty of an offence and liable
(a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or
(b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.
Application of subsections 121(2) to (5)
(9) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, to an offence under subsection (8).
1990, c. 7, s. 32
93. Section 118 of the Act is replaced by the following:
Criteria
118. On an application for a licence to export oil or gas, the Board shall satisfy itself that the quantity of oil or gas to be exported does not exceed the surplus remaining after due allowance has been made for the reasonably foreseeable requirements for use in Canada, having regard to the trends in the discovery of oil or gas in Canada.
1990, c. 7, s. 34
94. (1) The portion of subsection 119.06(2) of the Act before paragraph (a) is replaced by the following:
Criteria
(2) In determining whether to make a recommendation, the Board shall seek to avoid the duplication of measures taken in respect of the exportation by the applicant and the government of the province from which the electricity is exported, and shall have regard to
1990, c. 7, s. 34
(2) Paragraph 119.06(2)(b) of the Act is repealed.
1990, c. 7, s. 34
95. Subsections 119.08(1) and (2) of the Act are replaced by the following:
Issuance
119.08 (1) The Board may, subject to the approval of the Governor in Council, issue a licence for the exportation of electricity in relation to which an order made under section 119.07 is in force.
Criteria
(2) In deciding whether to issue a licence, the Board shall have regard to
(a) the effect of the exportation of the electricity on provinces other than from which the electricity is to be exported;
(b) whether the applicant has
(i) informed those who have declared an interest in buying electricity for consumption in Canada of the quantities and classes of service available for sale, and
(ii) given an opportunity to purchase electricity on terms and conditions as favourable as the terms and conditions specified in the application to those who, within a reasonable time after being so informed, demonstrate an intention to buy electricity for consumption in Canada; and
(c) any considerations that may be specified in the regulations.
96. Section 119.094 of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):
(d) specifying considerations to which the Board shall have regard in deciding whether to issue a licence for the exportation of electricity in relation to which an order made under section 119.07 is in force.
2001, c. 28, s. 59
97. The portion of section 120.5 of the Act before paragraph (a) is replaced by the following:
Where no declaration made
120.5 The Board may, despite its not being satisfied in accordance with section 118, issue a licence for the exportation to the United States, Chile or Costa Rica of such energy goods as were, or of such quality, kind or class of energy goods as was, referred to in a request made under section 120.3 if
98. The Act is amended by adding the following after section 133:
PART IX
ADMINISTRATIVE MONETARY PENALTIES
Board’s Powers
Regulations
134. (1) The Board may, with the approval of the Governor in Council, make regulations
(a) designating as a violation that may be proceeded with in accordance with this Act
(i) the contravention of any specified provision of this Act or of any of its regulations,
(ii) the contravention of any order or decision, or of any order or decision of any specified class of orders or decisions, made under this Act, or
(iii) the failure to comply with any term or condition of
(A) any certificate, licence or permit or of any specified class of certificate, licence or permit, or
(B) any leave or exemption granted under this Act or of any specified class of leave or exemption granted under this Act;
(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 139, 144 or 147, including the manner and proof of service and the circumstances under which documents are considered to be served.
Maximum
(2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for a violation must 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.
Powers
135. The Board may
(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 147.
Violations
Commission of violation
136. (1) Every person who contravenes or fails to comply with a provision, order, decision, term or condition designated under paragraph 134(1)(a) commits a violation and is liable to a penalty of an amount to be determined in accordance with the regulations.
Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Act and not to punish.
Liability of directors, officers, etc.
137. If a corporation commits a violation, any director, officer, 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 Act.
Proof of violation
138. In any proceedings under this Act 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, agent or mandatary is identified or proceeded against in accordance with this Act.
Issuance and service of notice of violation
139. (1) If a person designated under paragraph 135(b) 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.
Contents
(2) The notice of violation must
(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 their right to request a review with respect to the violation or the amount of the penalty, and of the prescribed period within which that right must be exercised;
(e) inform the person of the manner of paying the penalty set out in the notice; and
(f) inform the person that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they will be considered to have committed the violation and that they are liable to the penalty set out in the notice.
Rules about Violations
Certain defences not available
140. (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.
Common law principles
(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 Act applies in respect of a violation to the extent that it is not inconsistent with this Act.
Continuing violation
141. 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.
Violation or offence
142. (1) Proceeding with any act or omission as a violation under this Act precludes proceeding with it as an offence under this Act, and proceeding with it as an offence under this Act precludes proceeding with it as a violation under this Act.
Violations not offences
(2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.
Limitation or prescription period
143. No notice of violation in respect of a violation may be issued more than two years after the day on which the subject matter of the violation arises.
Reviews
Right to request review
144. A person who is served with a notice of violation may, within 30 days after the day on which it is served, or within any longer period that the Board allows, make a request to the Board for a review of the amount of the penalty or the facts of the violation, or both.
Correction or cancellation of notice of violation
145. 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 paragraph 135(b) may cancel the notice of violation or correct an error in it.
Review
146. (1) On receipt of a request made under section 144, the Board shall conduct the review or cause the review to be conducted by a person designated under paragraph 135(d).
Restriction
(2) The Board shall conduct the review if the notice of violation was issued by a person designated under paragraph 135(d).
Object of review
147. (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.
Determination
(2) The Board or the person conducting the review shall render a determination in writing and cause the person who requested the review to be served with a copy of the determination and the reasons for it.
Correction of penalty
(3) If 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.
Responsibility
(4) If 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 determination.
Determination final
(5) Despite subsection 21(1), a determination made under this section is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.
Federal Court
(6) Despite section 28 of the Federal Courts Act, the Federal Court has exclusive original jurisdiction to hear and determine an application for judicial review of a determination made under this section by the Board.
Burden of proof
148. If 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.
Responsibility
Payment
149. If a person pays the penalty set out in a notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.
Failure to act
150. A person that neither pays the penalty imposed under this Act nor requests a review in the prescribed period is considered to have committed the violation and is liable to the penalty.
Recovery of Penalties
Debts to Her Majesty
151. (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered in the Federal Court or any other court of competent jurisdiction.
Limitation period
(2) No proceedings to recover the debt may be instituted more than five years after the day on which the debt becomes payable.
Certificate
152. (1) The Board may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 151(1).
Registration in Federal Court
(2) Registration in the Federal Court or in any other court of competent jurisdiction 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.
General
Admissibility of documents
153. In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 139(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.
Publication
154. The Board may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.
Terminology — Chairman
99. The English version of the Act is amended by replacing “Chairman” with “Chairperson” in the following provisions:
(a) subsection 4(1);
(b) subsection 15(1);
(c) subsections 92(3) and (5); and
(d) subsection 93(2).
Transitional Provisions
Definitions
100. The following definitions apply in this section and sections 101 to 109.
“Board”
« Office »
“Board” means the National Energy Board established by section 3 of the other Act.
“Chairperson”
Version anglaise seulement
“Chairperson” means the Chairperson of the National Energy Board.
“commencement day”
« entrée en vigueur »
“commencement day” means the day on which this section and sections 68 to 85, 89, 90, 92 to 97, 99 and 101 to 114 come into force.
“designated project”
« projet désigné »
“designated project” means a project that is considered to be a designated project under subsection 126(1) of the Canadian Environmental Assessment Act, 2012.
“Minister responsible for the other Act”
« ministre responsable de l’autre loi »
“Minister responsible for the other Act” means the member of the Queen’s Privy Council for Canada that is designated by the Governor in Council as the Minister for the purposes of the other Act.
“other Act”
« autre loi »
“other Act” means the National Energy Board Act.
Application of subsections 6(2) and (2.1) and 11(4) and section 16
101. Subsections 6(2) and (2.1) of the other Act, as enacted by subsection 71(2), subsection 11(4) of the other Act, as enacted by section 74, and section 16 of the other Act, as amended by section 77, also apply in respect of proceedings that were before the Board immediately before the commencement day and that continue after that day.
Section 52 application — no agreement
102. If an application for a certificate under section 52 of the other Act was before the Board immediately before the commencement day and no final decision in respect of the application had been made before that day and no agreement had been entered into with the Board under section 40 of the Canadian Environmental Assessment Act before that day in respect of the pipeline to which the application relates, sections 52 to 55.2 of the other Act, as enacted by section 83, apply in respect of the application, as though the application had been made on that day.
Section 52 application — substitution
103. If an application for a certificate under section 52 of the other Act was before the Board immediately before the commencement day and no final decision in respect of the application had been made before that day and, before that day, the Board’s process for assessing environmental effects had been approved as a substitute under subsection 43(1) of the Canadian Environmental Assessment Act, sections 52 to 55.2 of the other Act, as enacted by section 83, apply in respect of the application, as though the application had been made on that day.
Section 52 application — review panel
104. (1) Subsections (2) to (9) apply in respect of an application for a certificate under section 52 of the other Act if
(a) the application was made before the commencement day;
(b) a review panel had been jointly established before that day under an agreement entered into under subsection 40(2) of the Canadian Environmental Assessment Act in relation to the pipeline to which the application relates; and
(c) no final decision in respect of the application had been made before that day.
Sections 52 to 55.2
(2) Subject to subsection (3) and (5) to (9), sections 52 to 55.2 of the other Act, as enacted by section 83, apply in respect of the application, as though it had been made on the commencement day.
Subsection 52(3)
(3) Unless subsection (8) or (9) applies, the reference in subsection 52(3) of the other Act, as enacted by section 83, to the Board is to be read as a reference to the review panel.
Canadian Environmental Assessment Act, 2012
(4) For the purposes of the environmental assessment under the Canadian Environmental Assessment Act, 2012 of the designated project to which the application relates,
(a) sections 47 and 48 of that Act are to be read as follows:
Governor in Council’s decision
47. (1) The Governor in Council, after taking into account the review panel’s report with respect to the environmental assessment, must make decisions under subsection 52(1).
Studies and collection of information
(2) Before making decisions referred to in subsection 52(1), the Governor in Council may, by order, direct the National Energy Board to require the proponent of the designated project to collect any information or undertake any studies that, in the Governor in Council’s opinion, are necessary for the Governor in Council to make decisions.
Publication
(3) A copy of the order must be published in the Canada Gazette within 15 days after it is made.
Excluded periods
48. (1) If the review panel under subsection 44(2) requires the proponent of the designated project to collect information or undertake a study with respect to the designated project and the review panel, with the approval of the Chairperson of the National Energy Board, states publicly that this subsection applies, the period that is taken by the proponent, in the opinion of the review panel, to comply with the requirement under subsection 44(2) is not included in the calculation of the period referred to in paragraph 38(3)(b) that is established under subsection 126(4).
Excluded periods
(2) If the National Energy Board, acting under an order made under subsection 47(2), requires a proponent of the designated project to collect information or undertake a study with respect to the designated project, the period that is taken by the proponent, in the opinion of the National Energy Board, to comply with the requirement is not included in the calculation of the period referred to in paragraph 38(3)(c) that is established under subsection 126(4).
(b) section 54 of that Act is to be read as follows:
Decision statement
54. (1) The National Energy Board must issue a decision statement to the proponent of a designated project that
(a) informs the proponent of the designated project of the decisions made under paragraphs 52(1)(a) and (b), and under subsection 52(4), if that subsection applies, in relation to the designated project; and
(b) includes any conditions that are established under section 53 in relation to the designated project and that must be complied with by the proponent.
Extension of time limit
(2) The Governor in Council may extend the time limits established under subsection 126(4) by any further period.
Public notice of extension
(3) The National Energy Board must make public any extension granted under subsection (2).
Excluded period
(4) If the National Energy Board, acting under an order made under subsection 47(2), requires a proponent of the designated project to collect information or undertake a study with respect to the designated project, the period that is taken by the proponent, in the opinion of the National Energy Board, to comply with the requirement is not included in the calculation of the period referred to in subsection 126(2) that is established under subsection 126(4).
Time limit
(5) The time limit established under subsection 126(4) of the Canadian Environmental Assessment Act, 2012 for the submission of the review panel’s report with respect to the environmental assessment of the designated project to which the application relates is to be considered, despite the period of 15 months referred to in subsection 52(4) of the other Act, as enacted by section 83, to be the time limit specified by the Chairperson under that subsection 52(4).
Extension
(6) If a time limit is extended under subsection 52(7) of the other Act, as enacted by section 83, the same extension is considered to have been made under subsection 54(2) of the Canadian Environmental Assessment Act, 2012, as that subsection reads by reason of paragraph (4)(b).
Extension
(7) If a time limit is extended under subsection 54(4) of the Canadian Environmental Assessment Act, 2012, as that subsection reads by reason of paragraph (4)(b), the same extension is considered to have been made under subsection 52(7) of the other Act, as enacted by section 83.
Exercise of Chairperson’s powers
(8) If a time limit is considered by virtue of subsection (5) to have been specified by the Chairperson under subsection 52(4) of the other Act, as enacted by section 83, and the Minister of the Environment and the Chairperson are of the opinion that the time limit is not likely to be met, the Chairperson may exercise any of the Chairperson’s powers under subsection 6(2.2) of the other Act, as enacted by subsection 71(2). If any of those powers are exercised,
(a) for greater certainty, subsections 6(2.3) to (2.5), as enacted by that subsection 71(2), apply; and
(b) the Minister of the Environment is considered to have terminated, under subsection 49(2) of the Canadian Environmental Assessment Act, 2012, the review panel’s environmental assessment of the designated project to which the application relates.
Exercise of Minister’s powers
(9) If the review panel’s environmental assessment of the designated project to which the application relates is terminated by the Minister of the Environment under subsection 49(1) or (2) of the Canadian Environmental Assessment Act, 2012, or is considered to have been terminated under subsection (8),
(a) despite section 50 of that Act, the Board shall complete the environmental assessment of the designated project and prepare a report with respect to the environmental assessment; and
(b) section 51 of that Act is to be read as follows in respect of that designated project:
Governor in Council’s decision
51. The Governor in Council, after taking into account the report with respect to the environmental assessment of the designated project, must make decisions under subsection 52(1).
Application before Board — section 58
105. Subsections 58(4) to (11) of the other Act, as enacted by section 84, apply in respect of each application for an order under section 58 of the other Act that was before the Board immediately before the commencement day and in respect of which no final decision had been made before that day, as though the application had been made on that day.
Application before Board — section 58.16
106. Subsections 58.16(4) to (13) of the other Act, as enacted by subsection 85(2), apply in respect of each application to which subsection 58.16(1) of the other Act applies that was before the Board immediately before the commencement day and in respect of which no final decision had been made before that day, as though the application had been made on that day.
Time limit
107. (1) Within 14 days after the commencement day, in respect of each application to which any of sections 102, 103, 105 and 106 applies that the Chairperson considers to have been complete before that day, specify a time limit for the Board to comply with subsection 52(1), 58(4) or 58.16(4) of the other Act, as the case may be, as enacted, respectively, by sections 83 and 84 and subsection 85(2). The Board shall also make that time limit public.
Clarification
(2) The time limit specified under subsection (1) may be longer than the 15-month period referred to in subsection 52(4), 58(5) or 58.16(4) of the other Act, as the case may be, as enacted, respectively, by sections 83 and 84 and subsection 85(2), if the Chairperson considers it appropriate in the circumstances, but it must be no longer than 15 months after the commencement day.
Chairperson’s powers
(3) To ensure that a time limit specified under subsection (1) is met, the Chairperson may exercise any of the Chairperson’s powers under subsection 6(2.2) of the other Act, as enacted by subsection 71(2). For greater certainty, subsections 6(2.3) to (2.5) of the other Act, as enacted by that subsection 71(2), apply if any of those powers are exercised.
Chairman
108. The person who holds the office of Chairman of the Board immediately before the commencement day continues in office as the Chairperson of the Board until the earlier of the expiry of the person’s term as a member of the Board and the designation of another member of the Board as its Chairperson.
Vice-Chairman
109. The person who holds the office of Vice-Chairman of the Board immediately before the commencement day continues in office as the Vice-chairperson of the Board until the earlier of the expiry of the person’s term as a member of the Board and the designation of another member of the Board as its Vice-chairperson.