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First Session, Forty-second Parliament,
64-65 Elizabeth II, 2015-2016
SENATE OF CANADA
BILL S-229
An Act respecting underground infrastructure safety
FIRST READING, September 29, 2016
THE HONOURABLE SENATOR Mitchell
4211315


SUMMARY
This enactment creates a federal underground infrastructure notification system that requires, among other things,
(a)operators of underground infrastructure that is federally regulated or that is located on federal land to register that underground infrastructure with a notification centre and provide information on it;
(b)persons planning to undertake a ground disturbance to make a locate request to the relevant notification centres; and
(c)operators of registered underground infrastructure, as a result of the locate request, to mark the location of the underground infrastructure on the ground, provide in writing any other accurate and clear description of the location of the underground infrastructure or indicate that the ground disturbance is not likely to cause damage to the underground infrastructure.
Finally, the enactment also provides a mechanism by which reserves and some other lands subject to the Indian Act can become subject to this notification system, after consultation with the council of any band in question.
Available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca


TABLE OF PROVISIONS
An Act respecting underground infrastructure safety
Short Title
1
Underground Infrastructure Safety Enhancement Act
Interpretation
2
Definitions
Designation
3
Designation of Minister
Application
4
Exclusion — underground infrastructure for non-commercial basis
5
Exclusion — military bases or stations
6
Amendment to schedule
Registration with a Notification Centre
7
Registration
8
Communication of information
Location and Identification of Underground Infrastructure
9
Locate request
10
Notification to operators of registered underground infrastructure — ground disturbance
11
Notification to person undertaking a ground disturbance
12
Response — location of registered underground infrastructure
13
Emergency locate
14
Separate responses
15
Ground disturbance — restrictions
Damage Prevention Organization
16
Damage prevention organization
Agreements
17
Agreements — purpose of this Act
Offences and Punishment
18
Offences
19
Parties to offence
20
Offences by employees, agents or mandataries
21
Continuing offence
22
Venue
23
Limitation period
24
Orders of court
25
Variation of sanctions
26
Subsequent applications with leave
27
Conflict with the National Energy Board Act
Regulations
28
Regulations
Reserves and Surrendered Lands
29
Non-application
Consequential Amendments
30
National Energy Board Act
31
Telecommunications Act
Coming into Force
33
Order in Council
Schedule


1st Session, 42nd Parliament,
64-65 Elizabeth II, 2015-2016
SENATE OF CANADA
BILL S-229
An Act respecting underground infrastructure safety
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Short Title
Short title
1This Act may be cited as the Underground Infrastructure Safety Enhancement Act.
Interpretation
Definitions
2The following definitions apply in this Act.
damage prevention organization means a non-profit organization whose primary roles are to prevent damage to infrastructure buried underground by developing and promoting effective prevention practices and to promote the safety of workers and the public. (organisation de prévention des dommages)
entity means a body corporate, a partnership, a trust, a joint venture or an unincorporated association or organization. (entité)
federal lands means
(a)lands that belong to Her Majesty in right of Canada or that Her Majesty in right of Canada has the power to dispose of; and
(b)reserves, surrendered lands and any other lands set apart for the use and benefit of a band that are subject to the Indian Act and that are designated under subsection 29(2). (territoire domanial)
ground disturbance means any work, operation or activity that results in a disturbance of the earth, including excavating, digging, trenching, plowing, drilling, tunnelling, augering, backfilling, blasting, pulverizing, post pounding, scarifying, topsoil stripping, land levelling, peat harvesting, quarrying, deforestation and earthworks. It does not include a disturbance of the earth caused by any of the following:
(a)cultivation to a depth of less than 45 cm below the surface of the ground;
(b)any other activity to a depth of less than 30 cm that does not result in a reduction of the cover over any underground infrastructure to a depth that is less than the cover provided when the underground infrastructure was constructed; or
(c)an activity that is specified in the orders or regulations made under subsection 112(5) of the National Energy Board Act. (perturbation du sol)
locate request means a request referred to in subsection 9(1). (demande de localisation)
notification centre means a non-profit corporation established under the laws of Canada or a province that is referred to in the schedule. (centre de notification)
operator, with respect to underground infrastructure, means a person or a group of persons that operates underground infrastructure. (exploitant)
person means an individual or an entity. (personne)
pipeline has the same meaning as in section 2 of the National Energy Board Act. (pipeline)
power line means
(a)an international power line within the meaning of section 2 of the National Energy Board Act; or
(b)an interprovincial power line, within the meaning of that section, that is the subject of an order made under section 58.‍4 of that Act. (ligne de transport d’électricité)
underground infrastructure means cables, ducts, equipment, pipes, pipelines, power lines, utility lines and vaults that are buried in the ground and that are located on federal lands or regulated by any of the following statutes:
(a)the Aeronautics Act;
(b)the National Energy Board Act;
(c)the Railway Safety Act;
(d)the Canadian Transportation Accident Investigation and Safety Board Act;
(e)the Telecommunications Act; and
(f)the Canada Transportation Act. (infrastructure souterraine)
utility line has the same meaning as in section 4 of the Railway Safety Act. (desserte)
working day means a day other than a Saturday or a holiday. (jour ouvrable )
Designation
Designation of Minister
3(1)The Governor in Council may, by order, designate any federal Minister to be the Minister referred to in this Act.
Jurisdiction of the Minister of Natural Resources
(2)Despite subsection (1), the Minister of Natural Resources is responsible for the administration of this Act as it relates to pipelines and power lines.
Application
Exclusion — underground infrastructure for non-commercial basis
4This Act does not apply to underground infrastructure that is privately owned and does not operate on a commercial basis.
Exclusion — military bases or stations
5The Minister may, by order, exclude any military base or station, in whole or in part, from the application of paragraph (a) of the definition federal lands in section 2.
Amendment to schedule
6The Minister may, by order, amend the schedule by adding to or deleting from it the name of a notification centre or of a province to which the notification centre provides services.
Registration with a Notification Centre
Registration
7The operator of any underground infrastructure must register it with the notification centre of each province in which the infrastructure is located — or with the notification centre that provides services to that province — and pay the registration fees fixed by that notification centre or by the legislation of the province in which the underground infrastructure is located.
Communication of information
8(1)The operator of any underground infrastructure must provide the following information to the notification centre of each province in which it is registered:
(a)a description of the geographical location of the underground infrastructure in that province, such as the digital geospatial data or legal description of the location;
(b)the name of any city, town or village in which the underground infrastructure is located in that province; and
(c)any other information that the notification centre considers necessary to exercise its functions or that the legislation of the province in which the underground infrastructure is located requires.
Modifications
(2)The operator must also inform the notification centre, in writing, of any modification to the information provided to the centre under paragraphs (1)‍(a) and (c).
Period of time
(3)The information referred to in subsections (1) and (2) must be provided to the notification centre in the manner specified by the notification centre or the legislation of the province in which the underground infrastructure is located.
Location and Identification of Underground Infrastructure
Locate request
9(1)Before a person undertakes a ground disturbance, that person must make a request to the notification centre of each province in which the ground disturbance is anticipated to take place — or to the notification centre that provides services to that province — for information on the location of any underground infrastructure that could be damaged by the ground disturbance.
Communication — other information
(2)Before undertaking the ground disturbance, the person must also provide the notification centre with the following information:
(a)the type of ground disturbance they are planning to undertake;
(b)the exact location of the anticipated ground disturbance; and
(c)any other information that the notification centre considers necessary to exercise its functions or that the legislation of the province in which the underground infrastructure is located requires.
Provision of information — period of time and manner
(3)The information referred to in subsections (1) and (2) must be provided to the notification centre at least three working days before the day on which the ground disturbance is to start — or as soon as possible before the ground disturbance is to start in the case of an emergency described in subsection 13(1) — and in the manner specified by the notification centre or by the legislation of the province in which the underground infrastructure is located.
Notification to operators of registered underground infrastructure — ground disturbance
10Immediately after receiving a locate request, the notification centre must provide notification of the ground disturbance, in writing, to all operators of registered underground infrastructure that could be damaged by that ground disturbance.
Notification to person undertaking a ground disturbance
11Immediately after receiving a locate request, the notification centre must also indicate, in writing, to the person that made the locate request
(a)whether or not any registered underground infrastructure is located in the area in which the ground disturbance is anticipated to take place; and
(b)the name of the operator of any registered underground infrastructure in that area.
Response — location of registered underground infrastructure
12(1)Subject to the regulations, the operator of registered underground infrastructure that receives a notification referred to in section 10 must, within the period of time specified in subsection (2),
(a)by using the prescribed colour codes, mark on the ground the location of the underground infrastructure and provide a written description of that location to the person planning to undertake a ground disturbance;
(b)provide to that person, in writing, any other accurate and clear description of the location of the underground infrastructure that could be damaged by the ground disturbance; or
(c)provide to that person a written confirmation that the ground disturbance is not likely to cause damage to the underground infrastructure.
Period of time
(2)The operator of registered underground infrastructure must provide the response referred to in subsection (1) within three working days after the day on which the operator receives the notification, in the case of a registered pipeline, or within the time specified by the notification centre or the legislation of the province in which the underground infrastructure is located, in the case of any other registered underground infrastructure, unless the operator of the registered underground infrastructure and the person planning to undertake the ground disturbance agree in writing to a longer period of time.
No fees
(3)Subject to subsections (4) and (5), the operator of registered underground infrastructure must not charge the person planning to undertake a ground disturbance a fee for responding to the notification in a manner described in any of paragraphs (1)‍(a) to (c).
Fees — outside normal business hours
(4)If, at the request of the person planning to undertake the ground disturbance, the operator of registered underground infrastructure responds to the notification outside normal business hours for reasons other than those described in subsection 13(1), the operator may charge that person a fee corresponding to the reasonable cost of responding to the notification outside normal business hours.
Fees — ground disturbance not undertaken
(5)The operator of registered underground infrastructure may also charge the person planning to undertake a ground disturbance a fee fixed by regulation if the operator was required to respond to multiple notifications related to the same ground disturbance but the person did not undertake the ground disturbance.
Emergency locate
13(1)A notification centre may require the operator of registered underground infrastructure to respond without delay to a notification referred to in section 10 — including outside normal business hours — if the notification centre considers that a person must undertake a ground disturbance in order to respond to an immediate threat to human health or the safety of persons or underground infrastructure or to prevent serious damage to the environment.
Response
(2)The operator must respond to the request of the notification centre in the manner described in paragraph 12(1)‍(a) or (c).
No fees
(3)Subject to subsection (4), the operator must not charge the person planning to undertake the ground disturbance a fee for responding to the request.
Fees — ground disturbance not undertaken
(4)The operator may charge the person planning to undertake the ground disturbance a fee fixed by regulation if the operator was required to respond to multiple requests related to the same ground disturbance, but the person did not undertake the ground disturbance.
Separate responses
14(1)An operator of registered underground infrastructure must provide a separate response, in accordance with section 12 or 13, as the case may be, for each notification that they receive from a notification centre under section 10.
Duration
(2)The response is valid only for the period of time that is specified by the notification centre, by the legislation of the province in which the underground infrastructure is located, or by the operator and the person planning to undertake a ground disturbance in the case of a response provided in accordance with paragraph 12(1)‍(b).
Response not valid
(3)For greater certainty, a response is not valid if it does not comply with section 12 or 13, as the case may be.
Ground disturbance — restrictions
15Subject to the regulations, a person planning to undertake a ground disturbance must not undertake it before
(a)the person has received a notification from a notification centre under section 11; and
(b)the operators of registered underground infrastructure mentioned in that notification have provided the person with a response in accordance with section 12 or 13, as the case may be.
Damage Prevention Organization
Damage prevention organization
16The Minister may assign to any damage prevention organization the functions — other than those assigned by this Act to notification centres — that the Minister considers necessary for carrying out the purposes of this Act.
Agreements
Agreements — purpose of this Act
17(1)The Minister may enter into agreements — including funding agreements — with the government of a province, a notification centre or a damage prevention organization for carrying out the purposes of this Act.
Funding agreements — creation of notification centres
(2)A funding agreement with the government of a province may provide for the creation of a centre whose primary goals are to
(a)provide a single point of contact in a province between persons undertaking any ground disturbance and operators of any infrastructure buried underground;
(b)receive and process requests for the identification and location of any infrastructure buried underground; and
(c)notify the operators of any infrastructure buried underground of any proposed construction or ground disturbance that could cause damage to that infrastructure.
Offences and Punishment
Offences
18(1)Every person that contravenes section 7, 8, 9, 12, 13 or 15 or a provision of the regulations is guilty of an offence and is liable on summary conviction,
(a)for a first offence, to a fine of not more than $10,000; and
(b)for a subsequent offence, to a fine of not more than $25,000.
Defence of due diligence
(2)Due diligence is a defence in a prosecution for an offence under subsection (1).
Parties to offence
19If a person other than an individual commits an offence under this Act, any of the person’s directors, officers, agents or mandataries who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to the offence and is liable on conviction to the punishment provided for by this Act, even if the person is not prosecuted for the offence.
Offences by employees, agents or mandataries
20In a prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by any employee, agent or mandatary of the accused, even if the employee, agent or mandatary is not identified or is not prosecuted for the offence.
Continuing offence
21If an offence under this Act is committed or continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued.
Venue
22A prosecution for an offence under this Act may be instituted, heard and determined
(a)in the place where the offence was committed or the subject-matter of the prosecution arose;
(b)where the accused was apprehended; or
(c)where the accused happens to be or is carrying on business.
Limitation period
23Proceedings in respect of an offence under this Act may be instituted at any time within two years after the time the Minister becomes aware of the acts or omissions that constitute the alleged offence.
Orders of court
24(1)If an offender has been convicted of an offence under this Act, in addition to any other punishment that may be imposed under this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects:
(a)prohibiting the offender from doing any act or engaging in any activity that may result in the continuation or repetition of the offence;
(b)directing the offender to pay Her Majesty in right of Canada an amount of money that the court considers appropriate for the purpose of promoting the prevention of damage to underground infrastructure;
(c)directing the offender to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection;
(d)directing the offender to notify, at the offender’s own cost and in the manner directed by the court, any person aggrieved or affected by the offender’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;
(e)directing the offender to post any bond or pay any amount of money into court that will ensure compliance with any order made under this section;
(f)directing the offender to submit to the Minister, on application by the Minister made within three years after the date of conviction, any information with respect to the offender’s activities that the court considers appropriate and just in the circumstances;
(g)directing the offender to compensate any person, monetarily or otherwise, in whole or in part, for the cost of any remedial or preventive action taken, caused to be taken or to be taken as a result of the act or omission that constituted the offence, including the costs of assessing appropriate remedial or preventive action;
(h)directing the offender to pay, in the manner prescribed by the court, an amount for the purposes of promoting public awareness of safe ground disturbance practices;
(i)requiring the offender to comply with any other conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for deterring the offender and any other person from committing offences under this Act; and
(j)prohibiting the offender from making any locate request during any period that the court considers appropriate.
Debt due to Her Majesty
(2)If the court makes an order under paragraph (1)‍(b) or (g) directing a person to pay an amount to Her Majesty in right of Canada, the amount or the costs, as the case may be, constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.
Enforcement
(3)If the court makes an order under paragraph (1)‍(g) directing an offender to pay an amount to a person, other than to Her Majesty in right of Canada, and the amount is not paid without delay, the person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Coming into force and duration of order
(4)An order made under subsection (1) comes into force on the day on which it is made or on any other day that the court may determine and shall not continue in force for more than three years after that day unless the court provides otherwise in the order.
Variation of sanctions
25(1)Subject to subsection (2), if a court has made, in relation to an offender, an order or direction under section 24, the court may, on application by the offender or the Attorney General of Canada, require the offender to appear before it and, after hearing the offender and the Attorney General, vary the order in one or any combination of the following ways that is applicable and that, in the opinion of the court, is rendered desirable by a change in the circumstances of the offender since the order was made:
(a)make changes in the order or the conditions specified in it or extend the time during which the order is to remain in force for any period, not exceeding one year, that the court considers desirable; or
(b)decrease the time during which the order is to remain in force or relieve the offender, either absolutely or partially or for any period that the court considers desirable, of compliance with any condition that is specified in the order.
Notice
(2)Before making an order under subsection (1), the court may direct that notice be given to any persons that the court considers to be interested and may hear any of those persons.
Subsequent applications with leave
26If an application made under section 25 in respect of an offender has been heard by a court, no other application may be made under that section with respect to the offender except with leave of the court.
Conflict with the National Energy Board Act
27In the event of a conflict between sections 18 to 26 of the Act as they relate to pipelines and power lines, and the National Energy Board Act and the regulations made under that Act as they relate to offences and punishment, the National Energy Board Act and those regulations prevail to the extent of the inconsistency.
Regulations
Regulations
28The Governor in Council may make any regulations that are necessary for carrying out the purposes and provisions of this Act, including regulations
(a)prescribing information that the operator of registered underground infrastructure is not required to provide under subsection 12(1) and the circumstances in which the operator is not required to provide that information;
(b)defining “reasonable cost” for the purposes of subsection 12(4);
(c)fixing the fees that the operator of registered underground infrastructure may charge a person under subsection 12(5) or 13(4) and defining “multiple notifications” for the purposes of those subsections;
(d)prescribing the circumstances in which a person planning to undertake a ground disturbance may undertake it before having received the notification or response referred to in section 15;
(e)establishing a funding program to enable notification centres and damage prevention organizations to exercise the functions assigned to them under this Act; and
(f)prescribing anything that by this Act is to be prescribed.
Reserves and Surrendered Lands
Non-application
29(1)This Act does not apply to underground infrastructure that is located on a reserve or on surrendered land or any other land set apart for the use and benefit of a band and subject to the Indian Act, unless that reserve, surrendered land or other land is designated under subsection (2).
Designation
(2)The Minister may, after consulting the Minister of Indian Affairs and Northern Development and the council of the band for whose use and benefit any land referred to in subsection (1) was set apart, make an order to subject that land to the application of this Act.
Clarification
(3)For greater certainty, this Act applies to the owner of any underground infrastructure that is located on any land designated under subsection (2) and to a person planning to undertake a ground disturbance that could damage that underground infrastructure.
Consequential Amendments
R.‍S.‍, c. N-7
National Energy Board Act
30The National Energy Board Act is amended by adding the following after section 12.‍1:
Damage prevention — powers and functions
12.‍2(1)The Board shall develop, implement and promote policies, programs and projects for the purpose of preventing or responding to damage or serious risk of damage to a pipeline, international power line, interprovincial power line that is the subject of an order made under section 58.‍4, or other facility whose construction or operation is regulated by the Board if such damage is or may be caused by a ground disturbance.
Orders
(2)The Board may order any of the following persons to take measures that the Board considers necessary in order to prevent or respond to the damage or serious risk of damage referred to in subsection (1):
(a)a company that has been authorized under Part III to construct or operate a pipeline;
(b)a person exporting oil, gas or electricity or importing oil or gas;
(c)a person holding a licence under Part VI or VII; or
(d)a person that engages in an activity that causes a ground disturbance within the prescribed area.
Regulations — damage prevention
12.‍3The Board may, with the approval of the Governor in Council, make regulations for the purpose of preventing or reducing the damage referred to in section 12.‍2.
1993, c. 38
Telecommunications Act
31The Telecommunications Act is amended by adding the following after section 46.‍5:
PART III.‍1
Damage Prevention
Powers and functions
46.‍6(1)The Commission must develop, implement and promote policies, programs and projects for the purpose of preventing or responding to damage or serious risk of damage if such damage is or may be caused by a ground disturbance regulated by the Underground Infrastructure Safety Enhancement Act to either of the following:
(a)a transmission facility; or
(b)a transmission line referred to in any of sections 43 to 45.
Orders
(2)The Commission may order any Canadian carrier or telecommunications service provider to take measures that the Commission considers necessary in order to prevent or respond to the damage or serious risk of damage referred to in subsection (1).
32The portion of section 72.‍001 of the Act before paragraph (a) is replaced by the following:
Commission of violation
72.‍001Every contravention of a provision of this Act, other than section 17 or 69.‍2, and every contravention of a regulation, a decision made by the Commission under this Act, other than a prohibition or a requirement of the Commission made under section 41, or an order made by the Commission under subsection 46.‍6(2), constitutes a violation and the person who commits the violation is liable
Coming into Force
Order in Council
33(1)Subject to subsection (2), the provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
Royal recommendation
(2)No order may be made under subsection (1) unless the appropriation of moneys for the purposes of this Act has been recommended by the Governor General and such moneys have been appropriated by Parliament.


SCHEDULE
(Sections 2 and 6)
Column 1
Column 2
Notification centre
Provinces
1. Alberta One-call Corporation
Alberta
Manitoba
2. BC One Call
British Columbia
3. Info-Excavation
Quebec
Nova Scotia
New Brunswick
Prince Edward Island
Newfoundland and Labrador
4. Ontario One-Call
Ontario
5. Sask 1st Call
Saskatchewan



EXPLANATORY NOTES
National Energy Board Act
Clause 30:New.
Telecommunications Act
Clause 31:New.
Clause 32:Existing text of the relevant portion of section 72.‍001:
72.‍001Every contravention of a provision of this Act, other than section 17 or 69.‍2, and every contravention of a regulation or decision made by the Commission under this Act, other than a prohibition or a requirement of the Commission made under section 41, constitutes a violation and the person who commits the violation is liable

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