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

Marginal note:Regulations

312 The Governor in Council may make regulations

• (a) respecting works and activities related to offshore renewable energy projects and to offshore power lines, for the purposes of safety, security and environmental protection;

• (b) respecting the conditions referred to in subsection 298(9);

• (c) prohibiting the introduction into the environment of substances, classes of substances and forms of energy in specified circumstances;

• (d) respecting the creation, updating, conservation and disclosure of records;

• (e) respecting arbitrations for the purposes of subsection 309(2), including the costs of or incurred in relation to such arbitrations; and

• (f) prescribing anything that is to be prescribed under this Part, other than the circumstances referred to in subsection 298(6).

Marginal note:Regulations — excluded periods

312.1 The Regulator may make regulations prescribing, for the purposes of subsection 298(6), the circumstances in which periods may be excluded from the calculation of the time limit.

PART 6Lands

General Powers

Marginal note:Powers of company

313 A company may, for the purposes of its undertaking, subject to this Act and to any Special Act applicable to it,

• (a) enter into and on any Crown land without previous licence, or into and on the land of any person, lying in the intended route of its pipeline, and make surveys, examinations or other necessary arrangements on the land for fixing the site of the pipeline and set out and ascertain the parts of the land that are necessary and appropriate for the pipeline;

• (b) acquire, lease and take from any person any land or other property necessary for the construction, maintenance, operation and abandonment of its pipeline or the maintenance of its abandoned pipeline and sell or otherwise dispose of, or lease, any of its land or property that has become unnecessary for the purpose of the pipeline or the abandoned pipeline;

• (c) construct its pipeline across, on or under the land of any person on the located line of the pipeline;

• (d) join its pipeline with the transmission facilities of any other person at any point on its route;

• (e) construct, erect and maintain all necessary and convenient roads, buildings, houses, stations, depots, wharves, docks and other structures and construct, acquire and lease machinery and other apparatus necessary for the construction, maintenance, operation and abandonment of its pipeline or the maintenance of its abandoned pipeline;

• (f) construct, maintain and operate branch lines and for that purpose exercise all the powers, privileges and authority necessary for that purpose in as full and ample a manner as for a pipeline;

• (g) alter, repair or discontinue the works mentioned in this section, or any of them, and substitute others in their stead;

• (h) transmit hydrocarbons or any other commodity by pipeline and regulate the time and manner in which hydrocarbons or any other commodity are to be transmitted and the tolls to be charged; and

• (i) do all other acts necessary for the construction, maintenance, operation and abandonment of its pipeline or the maintenance of its abandoned pipeline.

Marginal note:Damages and compensation

314 A company must, in the exercise of the powers granted by this Act or a Special Act, do as little damage as possible, and must make full compensation in the manner provided in this Act and in a Special Act to all persons interested, for all damage sustained by them by reason of the exercise of those powers.

Marginal note:Exercise of powers outside Canada

315 A company operating a pipeline from a place in Canada to a place on the international boundary line may exercise, beyond that boundary, to the extent permitted by the laws there in force, the powers that it may exercise in Canada.

Taking and Using Crown Lands

Marginal note:Crown lands

• 316 (1) A company must not take possession of, use or occupy lands vested in Her Majesty without the consent of the Governor in Council.

• Marginal note:Consent

  (2) A company may, with the consent of the Governor in Council and on any terms that the Governor in Council may prescribe, take and appropriate, for the use of its pipeline and works, the portion of the lands of Her Majesty lying on the route of the line that have not been granted, conceded or sold, and that is necessary for the pipeline, and also the portion of the public beach, or bed of a lake, river or stream, or of the lands so vested covered with the waters of a lake, river or stream that is necessary for making, completing and using its pipeline and works.

• Marginal note:Compensation where lands held in trust

  (3) If lands are vested in Her Majesty for a special purpose, or subject to a trust, the compensation money that a company pays for the lands must be held and applied by the Governor in Council for that purpose or trust.

• Marginal note:Exceptions

  (4) Subsections (1) to (3) do not apply to any of the following:

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

  • (b) any section or part of the pipeline that passes on, over, along or under a utility, as defined in subsection 217(6), if a certificate has been issued, or an order has been made under section 214, in respect of the pipeline and the certificate or order contains a condition relating to that utility;

  • (c) 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 214, in respect of the pipeline; and

  • (d) anything done under any leave obtained under section 108 of the National Energy Board Act at any time before July 3, 2013, as that section read from time to time before that day.

Certain Lands for Which Consent Required

Marginal note:Consent of council of the band

• 317 (1) Despite section 35 of the Indian Act, a company must not, for the purpose of constructing a pipeline or engaging in the activities referred to in paragraph 313(a), take possession of, use or occupy lands in a reserve, within the meaning of subsection 2(1) of the Indian Act, without the consent of the council of the band, within the meaning of that subsection.

• Marginal note:For greater certainty

  (2) For greater certainty, nothing in subsection (1) is to be construed as modifying the application of the other provisions of this Act.

• Marginal note:Consent of Governor in Council

  (3) A company must not take possession of, use or occupy the following lands without the consent of the Governor in Council:

  • (a) Category IA-N land, as defined in subsection 2(1) of the Naskapi and the Cree-Naskapi Commission Act;

  • (a.1) Category IA land, as defined in subsection 2(2) of the Cree Nation of Eeyou Istchee Governance Agreement Act; or

  • (b) shíshálh lands, as defined in subsection 2(1) of the shíshálh Nation Self-Government Act.

• Marginal note:Compensation

  (4) If the lands referred to in subsection (1) or (3) are taken possession of, used or occupied by a company, or if they are injuriously affected by the construction of a pipeline, compensation must be made by that company.

Marginal note:Consent of Yukon first nation or Governor in Council

• 318 (1) A company must not, if the Yukon first nation concerned does not consent to it, take possession of, use or occupy settlement land as defined in section 2 of the Yukon Surface Rights Board Act without the consent of the Governor in Council.

• Marginal note:Consent of Gwich’in Tribal Council or Governor in Council

  (2) A company must not, if the Gwich’in Tribal Council does not consent to it, take possession of, use or occupy Tetlit Gwich’in Yukon land without the consent of the Governor in Council.

• Marginal note:Public hearing

  (3) If land referred to in subsection (1) or (2) is to be taken possession of, used or occupied without the consent of the Yukon first nation or Gwich’in Tribal Council, as the case may be,

  • (a) a public hearing in respect of the location and extent of the land to be taken possession of, used or occupied must be held in accordance with the following procedure:

    • (i) notice of the date, time and place for the public hearing must be given to the Yukon first nation or Gwich’in Tribal Council and the public,

    • (ii) on the date and at the time and place fixed for the public hearing, an opportunity must be provided for the Yukon first nation or Gwich’in Tribal Council and the public to be heard,

    • (iii) costs incurred by any party in relation to the hearing are at the discretion of the person or body holding the hearing and may be awarded on or before the final disposition of the issue, and

    • (iv) a report on the hearing must be prepared and submitted to the Minister; and

  • (b) notice of intention to obtain the consent of the Governor in Council must be given to the Yukon first nation or Gwich’in Tribal Council on completion of the public hearing and submission of a report on the hearing to the Minister.

• Marginal note:Compensation

  (4) If the lands referred to in subsection (1) or (2) are taken possession of, used or occupied by a company, or if they are injuriously affected by the construction of a pipeline, compensation must be made by that company.

• Marginal note:Definition of Tetlit Gwich’in Yukon land

  (5) In this section, Tetlit Gwich’in Yukon land means land as described in Annex B, as amended from time to time, to Appendix C of the Comprehensive Land Claim Agreement between Her Majesty in right of Canada and the Gwich’in, as represented by the Gwich’in Tribal Council, that was approved, given effect and declared valid by the Gwich’in Land Claim Settlement Act.

Application

Marginal note:Application restricted

319 The provisions of this Part to determine compensation matters apply in respect of all damage, including the loss of value of the lands, caused by the operation of section 335 or by the pipeline or abandoned pipeline or anything transmitted by the pipeline but do not apply to

• (a) claims against a company arising out of activities of the company unless those activities are directly related to

  • (i) the acquisition or lease of lands for a pipeline or abandoned pipeline,

  • (ii) the construction of the pipeline, or

  • (iii) the inspection, maintenance or repair of the pipeline or abandoned pipeline;

• (b) claims against a company for loss of life or injury to the person; or

• (c) awards of compensation or agreements respecting compensation made or entered into prior to March 1, 1983.

Acquisition or Lease of Lands

Marginal note:Definition of owner

320 In sections 321 to 334, owner means any person who is entitled to compensation under section 314.

Marginal note:Methods of acquisition or lease

• 321 (1) Subject to subsection (2), a company may acquire or lease lands for a pipeline under a land acquisition or lease agreement entered into between the company and the owner of the lands or, in the absence of such an agreement, in accordance with this Part.

• Marginal note:Form of agreement

  (2) A company must not acquire or lease lands for a pipeline under an agreement referred to in subsection (1) unless the agreement includes provision for

  • (a) compensation for the acquisition or lease of lands to be made, at the option of the owner of the lands, by one lump sum payment or by periodic payments of equal or different amounts over a specified period of time;

  • (b) review every five years of the amount of any compensation payable in respect of which periodic payments have been selected;

  • (c) compensation for damages caused by the company’s operations, pipelines or abandoned pipelines;

  • (d) indemnification from all liabilities, damages, claims, suits and actions resulting from the company’s operations, pipelines or abandoned pipelines, other than liabilities, damages, claims, suits and actions resulting from

    • (i) in Quebec, the gross or intentional fault of the owner of the lands, and

    • (ii) elsewhere in Canada, the gross negligence or wilful misconduct of the owner of the lands;

  • (e) restriction of the use of the lands to the line of pipe or other facility for which the lands are, by the agreement, specified to be required unless the owner of the lands consents to any proposed additional use at the time of the proposed additional use;

  • (f) compensation to the owner of the lands if the use of those lands is restricted by the operation of section 335;

  • (g) compensation to the owner of the lands for any adverse effect on the remaining lands of the owner, including the restriction of their use by the operation of section 335; and

  • (h) any additional terms that are, at the time the agreement is entered into, required to be included in it by any regulations made under paragraph 333(d).

Marginal note:Notice of proposed acquisition or lease of lands

• 322 (1) If a company has determined the lands that may be required for the purposes of a section or part of a pipeline, the company must serve a notice on all owners of the lands, to the extent that they can be ascertained, which notice must set out or be accompanied by

  • (a) a description of the lands of the owner that are required by the company for that section or part;

  • (b) details of the compensation offered by the company for the lands required;

  • (c) a detailed statement made by the company of the value of the lands required in respect of which compensation is offered;

  • (d) a description of the procedure for approval of the detailed route of the pipeline;

  • (e) a description of the procedure available under this Part in the event that the owner of the lands and the company are unable to agree on any matter respecting the compensation payable; and

  • (f) any prescribed information.

• Marginal note:Agreement void or null

  (2) If an agreement referred to in section 321 is entered into with an owner of lands before a notice is served on the owner under this section, that agreement is void or, in Quebec, null.

• Marginal note:Abandonment: company’s liability

  (3) If a company serves a notice on an owner of lands under subsection (1) and subsequently decides not to acquire or lease all or part of the land described in the notice, it is liable to the owner for all damages suffered and reasonable costs incurred by the owner in consequence of the notice and the abandonment of the acquisition or lease of the land.

Marginal note:Agreement of purchase and sale

323 Subsections 321(2) and 322(1) do not apply during any period in which an agreement of purchase and sale with respect to the lands referred to in those subsections is in effect between the company and the owner of those lands.

Right of Entry

Marginal note:Immediate right of entry

• 324 (1) Subject to subsection 317(1), if the Commission considers it appropriate to do so, the Commission may, by order, on application to the Regulator in writing by a company, grant to the company an immediate right to enter any lands on any conditions specified by the Commission in the order.

• Marginal note:Notice

  (2) The Commission is not authorized to make an order under subsection (1) unless the Commission is satisfied that the owner of the lands in question has, not less than 30 days and not more than 60 days before the date of the application, been served with a notice setting out

  • (a) the purpose of the right of entry referred to in subsection (1);

  • (b) the date on which the company intends to make its application to the Regulator under subsection (1);

  • (c) the date on which the company intends to enter the lands and the period during which the company intends to have access to the lands;

  • (d) the address of the Regulator to which any objection in writing that the owner may make concerning the issuance of the order may be sent; and

  • (e) a description of the right of the owner to an advance of compensation under section 325 if the order is issued and the amount of the advance that the company is prepared to make.