Introduction

If enacted, Bill C-69¹ will entail significant changes to the regulation of offshore energy projects in Atlantic Canada. The shift from environmental assessments (EAs) under the Canadian Environmental Assessment Act, 2012² (CEAA 2012) to “impact assessments” (IAs) under the Impact Assessment Act³ (IA Act) will be acutely felt in the offshore oil and gas industry. The new but incomplete offshore renewable energy regime in the Canadian Energy Regulator Act⁴ (CERA) will have less immediate effect, but brings the potential for major change in the longer term. In both the oil and gas and renewable energy industries, there remains much uncertainty about how these changes will play out. The devil will be in the detail: revisions during the legislative process, supporting legislation, regulations, and implementation.

This article comments on a small selection of issues in Bill C-69 of importance to Atlantic Canada’s offshore oil and gas industry, and to its embryonic offshore renewable energy industry. It examines two broad issues that are among those bedeviling Atlantic Canada’s well-established offshore industry: who is responsible for conducting IAs for offshore projects; and what projects will be subject to the new IAs. A brief overview of CERA’s nascent offshore renewable energy regime is provided, with some comments on opportunities for Atlantic Canada, both missed and realized.

1. Impact Assessment Act and Offshore Oil & Gas in Atlantic Canada

The IA Act will bring in a host of changes with consequences for the assessment of Atlantic Canada offshore oil and gas projects, including the requirement to assess a list of factors⁵ much expanded from those required under CEAA 2012.⁶ Among those changes are two issues that are, at the time of writing, of particular concern for Atlantic Canada’s offshore industry. The first is the shift to a mandatory and inflexible requirement for panel reviews for designated offshore activities. The second, in part exacerbated by the first issue, is what activities will be included on the project list regulations.

a) Responsibility for Atlantic Canada Offshore IAs: Some Context

The Canada-Newfoundland & Labrador Offshore Petroleum Board (CNLOPB) and Canada-Nova Scotia Offshore Petroleum Board (CNSOPB) used to be responsible for all EAs for offshore projects, including those under the Canadian Environmental Assessment Act.⁷ This changed with the coming into force of CEAA 2012 and the Regulations Designating Physical Activities⁸ (the Project List). The Canadian Environmental Assessment Agency (the CEA Agency) became responsible for EAs for designated Atlantic Canada offshore oil and gas activities.⁹ The offshore boards continue to conduct EAs – sometimes called Accord Act EAs – for activities that do not trigger CEAA 2012¹⁰ in accordance with their enabling legislation (the Accord Acts).¹¹ While they supply specialist or technical knowledge and information to the CEA Agency, they do not directly participate in CEAA 2012 EAs.¹²

In 2015, the Conservative government sought to restore the offshore boards’ authority over CEAA 2012 EAs, giving them powers to hold the public hearings¹³ necessary for “responsible authority” status¹⁴ and publishing draft regulations designating the CNSOPB as a responsible authority.¹⁵ The effort failed, but continues to inform the debate over the offshore boards’ role in EAs.

The debate resurfaced during the federal review of EA processes. Views are sharply divided. Some assert that boards have no expertise in environmental matters, and with a purported mandate to “promote” the offshore industry, the boards are in a conflict of interest, “captured” by industry.¹⁶ As such, the boards should play no role in assessing the projects they regulate. By contrast, the NL government and industry associations, concerned about the time, cost and effort involved in CEAA 2012 EAs, have advocated returning some degree of assessment responsibility to the boards.¹⁷

For its part, the Expert Panel appointed to review federal EA processes (the Panel) did not specifically address the offshore boards’ role in EAs. The Panel’s report uses the term “offshore” only once and does not mention the offshore boards. The Panel’s view is restricted by considering only the two lifecycle regulators that, with the CEA Agency, comprise the responsible authorities: the National Energy Board (NEB) and the Canadian Nuclear Safety Commission (CNSC). The Panel largely focused on remedying perceived biases of the NEB and CNSC to restore public trust in EAs and support social licence.¹⁸ The Panel recommended removing these regulators from the EA process and incorporating the function into a single authority.¹⁹

In its June 2017 discussion paper (the Discussion Paper), the federal government advised that it was considering an approach where “the agency and life-cycle regulators would jointly conduct impact assessments as part of a single, integrated review process.”²⁰ The Panel’s views on the lifecycle regulators were thus not accepted. Industry may have taken comfort in a collaborative joint agency-offshore board process; environmental groups surely decried the involvement by the offshore boards. What appears in the IA Act, however, probably leaves both groups dissatisfied.

b) Responsibility for Atlantic Canada Offshore IAs: The IA Act

The new Impact Assessment Agency (the IA Agency) makes the threshold determination of whether designated component activities of an offshore project require an IA.²¹ This determination follows a new “planning phase.” As with CEAA 2012, the designated project proponent must submit an initial project description to the IA Agency.²² On the IA Agency’s request, the offshore boards, as “federal authorities,”²³ must provide the IA Agency with specialist or expert information or knowledge on request.²⁴ The IA Agency decides whether an IA is required.²⁵ Although the planning phase is new, the threshold decision-maker has not changed: the federal agency makes the decision without offshore board input.

The major change is who assesses designated Atlantic Canada offshore projects if an IA is required. As drafted, the IA Act obligates the Minister to refer the IA of such project to a review panel, without exception.²⁶ This same rule applies to activities regulated under CERA and the Nuclear Safety and Control Act (NSCA).²⁷ The IA Agency cannot conduct the IA. The Minister cannot approve the substitution of another jurisdiction’s EA process for an IA process for designated offshore projects.²⁸ Nor can the Minister enter into an agreement with another jurisdiction to jointly establish a review panel.²⁹ Designated offshore activities requiring an IA will therefore invariably undergo the most formal and rigorous form of IAs. Rather than the joint IA Agency-offshore board process suggested in the Discussion Paper, none of those entities will be responsible for IAs of designated offshore oil and gas projects. That responsibility will fall to variously composed review panels.

IA Act panel reviews will resemble those under CEAA 2012. As with CEAA 2012,³⁰ the Minister has the discretion to refer IAs to a review panel if he or she is of the opinion that it is in the public interest, considering a number of mandatory factors.³¹ It remains to be seen how the review panel timelines in the IA Act will play out, but the process is likely to be lengthy.³² The IA Agency will gather information and “scope” the project, determining the information and studies that the IA Agency considers necessary for the IA.³³ Time will be required to set the panel’s terms of reference and appoint its members.³⁴ The panel may then require the proponent to obtain any additional information or studies the panel deems necessary, before or after the IA is conducted.³⁵ IAs will be quasi-judicial proceedings with public hearings.³⁶ The IA Act review panel processes will undoubtedly be more time-consuming, expensive and onerous than assessments by the IA Agency or the offshore boards as responsible authorities.³⁷ This all points to a lengthy and complex process for IAs for designated offshore projects, with no flexibility to scale the assessment mechanism to the assessed activities.

The process is thus not a “joint” IA Agency-offshore board collaborative process, as proposed in the Discussion Paper. However, there is a degree of mandatory “integration” of offshore board and review panel membership. In this regard, the IA Act is consistent with the Discussion Paper. Review panels for designated projects that include activities regulated under the Accord Acts must include at least two persons appointed from rosters of CNLOPB or CNSOPB members, on the recommendation of the Chairperson of the respective offshore board in consultation with the Minister of Natural Resources.³⁸ There are similar panel appointment requirements for activities regulated established under CERA and NSCA, requiring appointees from the Commission to established under CERA (the Commission) and the CNSC, respectively.³⁹ If this feature becomes law, offshore board technical expertise will be integrated into the panel. This is another significant change from CEAA 2012 review panels, which do not require any offshore board involvement or input.

Panels will require a minimum of five appointees, but there is no cap on offshore board member numbers.⁴⁰ The chairperson could be an offshore board member. Theoretically, a review panel could also consist entirely of offshore board members. It seems unlikely that such a panel would ever be appointed, at least by the present government.  The government’s intent was not to give responsibility for offshore oil and gas IAs to the offshore boards, but to include some measure of offshore board expertise in IAs. In any case, a five-member panel would require appointing the entire CNSOPB, or most of the CNLOPB.⁴¹

There is a notable difference in the IA Act’s treatment of the Commission and CNSC and offshore board review panels’ respective abilities to regulate under their enabling statutes during the IA process. Commission and CNSC review panels are essentially required to simultaneously conduct the IA and permitting processes required under their home statutes and in doing so can exercise their powers under those statutes.⁴² This is consistent with the government’s intention to “focus on single window for federal coordination (e.g. ensuring alignment of assessment and follow-on permitting).”⁴³

By contrast, the IA Act does not permit panels assessing offshore projects to exercise Accord Act powers during the IA process, and does not require such panels to address the requirements for authorizations under the Accord Acts as part of the assessment process.  While some have raised concerns about the intermingling of assessment and regulatory approval processes,⁴⁴ the IA Act does not clearly integrate IA and regulatory permitting processes for Atlantic Canada offshore projects in the same way it does for Commission and CNSC processes. Whether this is intentional or an oversight is unclear. The government’s treatment of the offshore boards and Accord Acts in relation to the IA Act seems an afterthought: all of the provisions relating to this issue are contained in amendments to Part I of Bill C-69.

c) Some Observations on the IA Act Process for Offshore Projects

Offshore board membership on review panels is likely to remain controversial if the IA Act becomes law. Offshore board member appointments may be challenged for conflict of interest or bias. The IA Act requires that the persons appointed to review panels must “be unbiased and free from any conflict of interest relative to the designated project.”⁴⁵ Thus, challengers must show that an appointee is biased or in conflict of interest relative to the actual project, rather than having a generalized “industry” bias. A petroleum industry résumé alone should not be sufficient to disqualify a potential appointee. Aside from the dubious foundation for any allegation of inherent, general conflict or bias,⁴⁶ it is doubtful that, absent conduct or comments suggesting bias, offshore board members would be excluded under the Supreme Court of Canada’s flexible approach to bias in relation to administrative boards.⁴⁷ The controversy, however, will no doubt remain. The possibility of challenges to panel composition within or outside the IA Act process adds to the potential for delay.

From an Atlantic Canadian practitioner’s perspective, perhaps the most glaring issue with the IA Act process for designated offshore oil and gas activities is that it is completely inflexible in terms of process. The IA Act assumes all offshore oil and gas activities must undergo the most rigorous and also lengthy and onerous of IA processes without regard for the activities designated. Nor is there any room for joint assessments or substitutions that might help streamline assessments and permitting processes. The IA Agency will have a threshold role in determining whether designated offshore activities require an IA, but it seems unlikely that designated offshore activities would ever spared an IA. This rigid feature of the IA Act seems incongruous with the government’s guiding principle that “the scale of assessment [will be] aligned with the scale and potential impacts of the project.”⁴⁸ Requiring a panel review panel may be appropriate for a major development project, but in many cases, it seems inappropriate for the drilling of exploratory wells in an offshore area where the risks are already well documented.

d) What Atlantic Canada Offshore Projects will be subject to IAs?

The federal government has indicated that it will maintain a project list approach to IAs “to retain clarity on when a federal assessment is required.”⁴⁹ This includes maintaining authority to designate non-listed projects, and to exclude “designated projects from assessment under certain conditions based on clear criteria and a transparent process.”⁵⁰ At the time of writing, the government is seeking input on its proposed approach to revising the CEAA 2012 Project List.⁵¹ Its stated intent is to list only those projects that have the most potential for adverse environmental effects in areas of federal jurisdiction. Projects with potential for smaller likely effects would be subject to other federal regulatory processes, such as the Accord Act EAs.⁵²

The IA Act maintains a project list approach and allows the Minister to designate non-listed projects for IA.⁵³ However, with respect to excluding designated projects, the options are limited. Cabinet can make regulations varying or excluding requirements under the IA Act or regulations in certain circumstances, mostly relating to activities taking place within reserves, lands covered by land claim agreements, areas subject to agreements with bodies established under land claims agreements or Indigenous governing bodies, or under international agreements or arrangements entered into by the Government of Canada.⁵⁴ Cabinet may order that designated projects be excluded from the application of the IA Act if there are matters of national security in relation to the project, while the Minister can exclude projects in cases of national emergency.⁵⁵ There are no other procedures for excluding designated projects from the IA Act’s application.

The upshot is that once a project category is on the Project List, there are no mechanisms for exclusion relating to the nature of the activity within the IA Act. If the mandatory review panel requirement becomes law, the types of activities included on the Project List therefore take on added importance. Since the IA Act does not allow for a less onerous form of assessment for Atlantic Canada offshore oil and gas projects, the projects to be listed should be carefully considered to avoid including activities for which an IA might be appropriate, but a full panel review would constitute overkill. The inflexibility of mandatory panel reviews is mitigated to some extent if the types of projects designated are limited to those that truly warrant a panel review.

It is likely appropriate to require major offshore development, production or decommissioning activities to undergo the most formal and rigorous form of IA. However, subjecting all exploratory well activity without exception, and certain development plan amendments, to panel review is more problematic, and is proving to be a major issue for the Atlantic Canada industry and NL government.

The current Project List assigns the following category of Atlantic Canada offshore exploratory well activities to the CEA Agency:⁵⁶

10 The drilling, testing and abandonment of offshore exploratory wells in the first drilling program in an area set out in one or more exploration licences issued in accordance with the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act or the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act. [Emphasis added]

The CEA Agency has interpreted the “area” at issue to be the exploration licence(s) (EL)  held by the proponent, rather than a particular area, basin or geological feature of the offshore that is under Accord Act jurisdiction. This interpretation is far more restrictive than the governing legislation and has a real effect on the quantity of activity designated. Under the CEA Agency’s interpretation, the first exploratory drilling program on an EL is a designated activity, regardless of whether the EL and the proposed exploratory wells are in “an area” of the offshore that has already been subject to exploratory drilling, development or production. For instance, the first exploratory drilling program on an EL issued within the Jeanne D’Arc basin area would require an EA, despite that the area is in production and the environmental and other risks have been well documented through previous EAs. Similarly, the first well on an EL in the Flemish Pass basin area, where over 20 exploratory wells have been safely drilled, would be captured. Under the CEA Agency’s approach, exploratory wells drilled in these existing high-activity areas are treated the same as wells in truly frontier areas, such as the Gulf of St. Lawrence or Canadian Arctic. It seems unlikely that section 10 was intended to capture such activity.

If Atlantic Canada offshore activities will automatically be subjected to lengthy panel reviews, the Project List should specify with greater clarity what exploratory drilling activities are designated for IA Act review. A panel review may take years, while an offshore exploratory well can typically be completed in 30 to 90 days. Consideration should be given to clearly excluding from the Project List exploratory activities that take place within areas where the environmental and other risks have been previously assessed. The relevant areas could be defined in  geographical or geological terms or other descriptors, provided the description of the area was clear.  Activities in these areas would remain subject to EAs under the Accord Acts.

Regional assessments, which are available under the IA Act, could also play a role in relation to IAs for exploratory drilling.⁵⁷ However, the regional assessment processes in the IA Act are skeletal. They are creatures of Ministerial discretion and their parameters will be set out in terms of reference. There are no provisions respecting timelines for completion or even guaranteeing the completion of the assessment.

There is no doubt that Canada’s federal environmental processes have suffered from a lack of public trust, and the restoration of trust to these processes is a laudable and important goal. It is also clear, however, that the processes are in many cases time-consuming, lengthy and expensive, to the extent that projects that are in the public interest do not proceed. This concern should not be minimized.

2. The Canadian Energy Regulator Act and Offshore Renewable Energy in Atlantic Canada

As this author has written elsewhere,⁵⁸ offshore renewable energy represents a key opportunity for sustainable economic growth in Atlantic Canada. One of the hurdles to the development of an offshore renewable energy industry is the absence of a federal regulatory regime applicable to waters outside provincial territory. Part II of Bill C-69 will enact CERA, repeal the National Energy Board Act and replace the National Energy Board with the new Canadian Energy Regulator, establishing a Commission. An important component of CERA is that it creates the first – albeit incomplete – federal regulatory regime for offshore renewable energy (ORE) projects and offshore power lines (OPL) outside provincial territory.⁵⁹ Despite the importance of this first step, the ORE regulation has received far less public attention than other aspects of Bill C-69.  Although the consequences of CERA’s ORE provisions for Atlantic Canada will be less immediate than the IA Act changes, their long-term potential is significant.

The ORE provisions are set out at Part 5 of CERA, and they essentially provide the regulatory framework for the permitting and ongoing regulation of ORE and operations in the “offshore area.”  CERA defines “offshore area” essentially as Canada’s internal waters or territorial sea that are not situated in a province and the waters above the Continental Shelf of Canada.⁶⁰ The law will apply to ORE projects, including: research or assessment conducted in relation to the exploitation or potential exploitation of a renewable resource to produce energy; storage of energy produced from a renewable resource; and transmission of energy produced from a renewable resource that is not transmitted to a province or a place outside of Canada.⁶¹ It also applies to OPL, defined as facilities constructed or operated for the purpose of transmitting electricity from an ORE project to a province or a place outside Canada.

A key limitation of the new ORE provisions is that they will not apply to waters that are within a province, such as the Bay of Fundy. This risks regulatory inconsistency between provincial regimes – such as Nova Scotia’s Marine Renewable-energy Act⁶² – and the federal ORE under CERA. This author has argued elsewhere that a joint federal-provincial provincial regime for ORE akin to the Accord Acts would be preferable to the federal government acting alone, partly because joint legislation could provide regulatory consistency across all Atlantic Canadian waters.⁶³ The joint federal-provincial Accord Acts, for instance, incorporate the Canada Oil & Gas Operations Act⁶⁴ (COGOA) operations framework and Canadian Petroleum Resources Act⁶⁵ (CPRA) land tenure model. As such, offshore oil and gas regulations are generally consistent across all of Canada’s offshore areas. Absent any concerted effort by the Atlantic Canadian provinces to engage the federal government, it seems likely that disparate and overlapping federal and provincial regimes in significant areas like the Bay of Fundy will be the unfortunate reality.

As it stands, the Commission will be responsible for authorizing and regulating ORE operators under CERA.⁶⁶ The framework will be familiar to offshore oil and gas industry participants, as it closely resembles the COGOA/Accord Acts model. Some of the common features include the following:⁶⁷

• Work or activity in the offshore area related to an ORE project or OPL, or any work or activity to construct, operate or abandon any part of an OPL that is in a province, is prohibited except in accordance with an authorization.
• The Commission issues authorizations for ORE and OPL work and has broad discretion to attach conditions to authorizations.
• The Commission may suspend or revoke authorizations for contravention of a condition of the authorization.
• There is unlimited at-fault liability for actual loss or damage caused by debris from ORE and OPL projects, with absolute liability (i.e. without proof of fault or negligence) being imposed on the authorization holder for actual loss and damage up to the limit of liability, currently set at $1 billion in most areas.
• Applicants must provide proof of financial resources and financial responsibility in the amount set by the Commission and in specified forms.

Authorizations for projects on the Project List will be subject to the joint assessment/permitting process applicable to CERA-regulated activities set out in the IA Act.⁶⁸ Where the ORE or OPL project requires an IA under the IA Act, the Commission must approve or deny the proponent’s application for an authorization solely based on the report issued by the review panel under the IA Act.⁶⁹ Thus, the assessment and permitting processes are integrated. As noted above, this integrated IA Act process applies to review panels for CERA and CNSC-regulated activities, but does not apply to panel reviews of offshore activities regulated under the Accord Acts.

While the current Project List is undergoing review and may be revised, it currently includes in-stream tidal projects of 50 MW or more, or other tidal projects of 5 MW or more.⁷⁰ As offshore wind turbine farms become increasingly viable in Canada, it is possible that some of the associated activities will be included on the Project List, particularly for large scale arrays.

If an IA is not triggered for the ORE or OPL project, the Commission must take into account specific enumerated factors when considering the application for an authorization.⁷¹

As noted, CERA’s new ORE regime is incomplete. It does not address land/spatial rights issuance and tenure. Presumably, this component of the regulatory regime will follow in the form of separate legislation, rather than additions to CERA as Bill C-69 winds through the legislative process, or amendments after CERA has been enacted. In this regard, Natural Resources Canada (NRCan) is currently “developing a supportive policy framework for administering marine renewable energy measures in the federal offshore through the Marine Renewable Energy Enabling Measures program,”⁷² which was put in place in November 2011.⁷³ As the federal department responsible for the marine renewables program, it is possible that NRCan will ultimately be tagged to run the land rights issuance process. Further, if the incorporation of the COGOA operations model into CERA’s ORE regime is any indication, it may be that the CPRA land tenure model forms the basis for the federal ORE land tenure regime. As noted above, both COGOA and CPRA form the basis for the Accord Acts. However, this aspect of the federal ORE regime remains unknown at the time of writing.

CERA’s new ORE provisions facilitate the potential for sustainable economic development in Atlantic Canada. Ultimately, the development of an offshore renewable energy industry in Atlantic Canada will depend on much more than simply putting in place a regulatory regime. Market conditions and policy incentives will undoubtedly play a big role in how quickly the industry might develop and how successful it is. Yet the partial creation of a regulatory regime goes a long way to creating the legal and procedural certainty that project proponents require. However, as with the IA Act, much of the detail of the regime remains unknown, in the form regulations yet to be developed, and the development of legislation for land rights issuance. Since the Commission will have a great degree of discretion to regulate by attaching conditions to authorizations, the Commission’s practices and policies will also be important. The degree to which Atlantic Canada will benefit from and participate in the regulation of renewable energy projects off the Atlantic provinces’ coasts remains an open question.

Conclusion

Bill C-69 is a behemoth of legislative change, and many of its changes will have consequences for offshore energy projects in Atlantic Canada. This article has commented on only a few of those changes as they relate to offshore energy projects, largely from the point of view that the time, effort and cost of assessment processes in Canada has become problematic. This is not to say that other goals of reform are unimportant or are less important. In particular, EA processes have been challenging for Canada’s Indigenous peoples and reconciliation is and should be a central important goal of reform. However, IA processes should also be scaled to the type of activity being assessed. Currently, the IA Act process seems unnecessarily rigid in this regard. There is also no clear explanation for the incongruities between the Commission and CNSC panel review approach, which provides for integrated assessment and permitting processes, and the offshore board approach, which does not. Whatever the reason, restricting the assessment of offshore activities to a single IA mechanism without exception does not seem to fit with the Liberal government’s guiding principle of “one project – one assessment, with the scale of assessment aligned with the scale and potential impacts of the project.”⁷⁴

By contrast, the new but incomplete ORE regime in CERA represents a quiet step forward for Canada’s emergent offshore renewable energy industry. While a joint federal-provincial regime would be preferable to disparate and potentially inconsistent regulations, some regulatory certainty in waters outside provincial territory is better than none. One hopes the Atlantic Canada provincial governments will become more engaged and form a cohesive front as the federal government moves towards completing the regime.

*Daniel is a partner in the Halifax office of McInnes Cooper. His practice focuses primarily on litigation and regulatory advice, with a focus on offshore energy and all aspects of marine law. He is the lead Partner on McInnes Cooper’s Ocean Economy Team.

1. Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, 1^st Sess, 42^nd Parl, 2018.
2. Canadian Environmental Assessment Act, SC 2012, c 19, s 52 (“CEAA 2012”).
3. Impact Assessment Act, being Part I of Bill C-69, supra note 1 (“IA Act”).
4. Canadian Energy Regulator Act, being Part II of Bill C-69, supra note 1 (“CERA”).
5. IA Act, supra note 3, s 22.
6. CEAA 2012, supra note 2, s 19.
7. Canadian Environmental Assessment Act, SC 1992, c 37 (“CEAA”).
8. SOR/2012-147 (the Project List).
9. Ibid, ss 2, 4(1) and Schedule, ss 10-13.
10. See the CNSOPB’s Guidelines on Plans and Authorizations Required for Development Projects, August 1995, at 2.3, online: <https://www.cnsopb.ns.ca/sites/default/files/pdfs/plansauthoriazations.pdf>.
11. Respectively, the Canada-Newfoundland and Labrador Atlantic Accord Implementation Act, SC 1987, c 3 and “mirror” provincial counterpart, the Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act, RSNL 1990, c C-2 (collectively, the NL Accord Act); Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, SC 1988, c 28 and Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation (Nova Scotia) Act, SNS 1987, c 3 (together, the NS Accord Act). All citations in this article are to the federal versions.
12. CEAA 2012, supra note 2, s 11.
13. Energy Safety and Security Act, SC 2015, c 4, ss 41, 51, adding NL Accord Act, supra note 11, ss 44.1, 138.01; and ss 77, 87, adding NS Accord Act, supra note 11, ss 44.1, 142.02.
14. CEAA 2012, supra note 2, s 15(c).
15. See the “Federal Authority as a Responsible Authority for Designated Projects Regulations: Regulatory Impact Analysis Statement”, (2015) 149:26 Can Gaz, online: <gazette.gc.ca/rp-pr/p1/2015/2015-06-27/html/reg5eng.php>. At the time of publication in the Gazette, the CNLOPB was apparently unwilling take on the “responsible authority” role.
16. CBC News, “Environmental groups perplexed over possible offshore assessment changes” (24 January 2018), online: <http://www.cbc.ca/news/canada/nova-scotia/offshore-alliance-protest-nova-scotia-environmental-impact-assessments-1.4501948>.
17. CBC News, “Proposal to retool environmental assessments rattling nerves in Newfoundland’s offshore” (19 June 2017), online: <http://www.cbc.ca/news/canada/newfoundland-labrador/enironmental-assessment-changes-1.4164484>.
18. Expert Panel for the Review of Environmental Assessment Processes, “Building Common Ground: A New Vision for the Review of Impact Assessment in Canada” (April 2017) at 51, online: <https://www.canada.ca/en/services/environment/conservation/assessments/environmental-reviews/environmental-assessment-processes/building-common-ground.html>.
19. Ibid.
20. Government of Canada, Environmental and Regulatory Reviews: Discussion Paper (June 2017) at 17, online: <https://www.canada.ca/content/dam/themes/environment/conservation/environmental-reviews/share-your-views/proposed-approach/discussion-paper-june-2017-eng.pdf> “(Discussion Paper)”.
21. IA Act, supra note 3, s 16.
22. Ibid, s 10.
23. Ibid, s 2, federal authority (d), s 109(a), Schedule 1. The IA Agency also has some authority to direct the offshore boards how to carry out their own regulatory mandate under the Accord Acts: see s 13(2), which allows the Agency to direct federal authorities to “engage the proponent […] in order that the federal authority may specify to the proponent the information, if any, that it may require in order to exercise those powers or perform those duties or functions.”
24. IA Act, supra note 3, s 13(1).
25. Ibid, s 16.
26. Ibid, s 43(a.1) and (c), as added by the Amendments to the Impact Assessment Act (the Amendments), s 5.
27. Ibid, ss 43(a) and (b).
28. Ibid, s 32(b).
29. Ibid, s 39(2).
30. CEAA 2012, supra note 2, s 38
31. IA Act, supra note 3, s 36.
32. The panel must submit its IA report to the Minister no later than 600 days after the Minister has appointed the minimum number of panel members: see IA Act, supra note 3, at s 37. This is subject to Ministerial orders to lengthen or shorten the timeline (s 37(2)), among other things, as well as the 45 days available to the Minister after the notice of commencement of the IA is posted to refer the IA to a review panel (s 36(a)), and, subject to extensions, 180 days from the planning phase to the IA Agency’s posting of the notice of the commencement of the IA (s 18(1)).
33. IA Act, supra note 3, ss 18-20.
34. Ibid, ss 46.1 and 48.1, added by the Amendments, ss 6-7.
35. Ibid, ss 38, 52(2).
36. Ibid, ss 51 – 53.
37. Compare IA Act, supra note 3, ss 25-29 on IA Agency IAs, and ss 36-59 on panel reviews.
38. IA Act, supra note 3, ss 46.1, 48.1, 50(b.1), (d), added by the Amendments, ss 6-8.
39. Ibid, ss 44 and 47.
40. Ibid, ss 46.1, 48.1, 50(b.1), (d), added by the Amendments, ss 6-8.
41. NS Accord Act, supra note 11 at s 10(1), creating a five-member board; NL Accord Act, supra note 11, ss 10(1), creating a seven-member board.
42. IA Act, supra note 3, ss 46, 48, 51(2)-(3).
43. Discussion Paper, supra note 20 at 18.
44. Meinhard Doelle & John Sinclair, “Panel Reviews under the Proposed Federal Impact Assessment Act (IAA)”, Environmental Law News, Climate Change, EA, Regulation, Governance (4 March 2018), online: <https://blogs.dal.ca/melaw/2018/03/04/panel-reviews-under-the-proposed-canadian-impact-assessment-act-ciaa/>.
45. IA Act, supra note 3, ss 46.1(2), 48.1(2), added by the Amendments, ss 6-7.
46. A typical argument is that the Accord Acts require the offshore boards to promote or expand offshore oil and gas activity. This is, in the author’s opinion, a mischaracterization of the legislation. The Accord Acts do not require the offshore boards to promote or expand oil and gas activity. Under the Accord Acts, the offshore boards must conduct themselves with the political accords – the Canada-Newfoundland Atlantic Accord and the Canada-Nova Scotia Offshore Petroleum Resources Accord (the Accords) – in mind: see Mobil Oil Canada Ltd v Canada Newfoundland Offshore Petroleum Board, [1994] 1 SCR 202 at 219. It is true that the Accords’ objectives include, among many other objectives, achieving the early development of offshore resources for the benefit of Canada as a whole and the respective provinces in particular. However, the Accord Acts’ provisions take precedence over any duties or powers in the Accords that are inconsistent with the Accord Acts: NS Accord Act, s 18(1) and NL Accord Act, s 17(1). In any case, neither the Accords nor the Accord Acts can be reasonably interpreted as requiring the boards to prioritize project approvals over environmental responsibility. Absent evidence to the contrary, offshore board members, like any panel appointees, ought to be entitled to a presumption they will carry out their statutory duties without bias. They are no more or less biased than panel members that oppose hydrocarbons as an energy source or who view offshore development as inherently problematic.
47. The basic test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator, and the courts must take a flexible approach to the problem so that the standard which is applied varies with the role and function of the board being considered: see Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 SCR 623 (Newfoundland Telephone) at 636.
48. Discussion Paper, supra note 20 at 7.
49. Ibid at 19.
50. Ibid at 18-19.
51. Government of Canada, Consultation Paper on Approach to Revising the Project List: A Proposed Impact Assessment System (8 February 2018), online: <https://www.canada.ca/en/services/environment/conservation/assessments/environmental-reviews/environmental-assessment-processes/consultation-paper-approach.html>.
52. Ibid at 2-3.
53. IA Act, supra note 3, ss 2 designated project, 7, 9, 17, 109(b).
54. Ibid at s 109(d). Query whether offshore oil and gas activities constitute physical activities “carried out … under international agreements … entered into by the Government of Canada” within the meaning of s 109(d) of the IA Act. The exploitation of offshore oil and gas is an exercise of Canada’s sovereign rights to explore and exploit the natural resources of the continental shelf, as recognized in the Geneva Convention on the Continental Shelf, 29 April 1958, 450 UNTS 11, art 2 (in force 10 June 1964) and the United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, art 76 (in force 16 November 1994).
55. IA Act, supra note 3, ss 115.
56. Project List, supra note 8 at Schedule, s 10.
57. IA Act, supra note 3, ss 92-94.
58. Sarah Mahaney & Daniel Watt, “Canada’s New Ocean Economy: Charting a Course for Good Governance of Emerging Ocean Resources”, Canadian Institute of Resources Law, Occasional Paper #61 (September 2017), online: <https://www.cirl.ca/files/cirl/charting-a-course-for-good-governance-of-canadas-emerging-ocean-economy.pdf>.
59. CERA, supra note 4, Part 5.
60. Ibid, s 2, offshore area.
61. Ibid, offshore renewable energy project.
62. Marine Renewable-energy Act, SNS 2015, c 37.
63. Mahaney & Watt, supra note 58 at 35-36.
64. Canada Oil & Gas Operations Act, RSC 1985, c O-7.
65. Canadian Petroleum Resources Act, RSC 1985, c 36 (2^nd Supp).
66. CERA, supra note 4, s 298.
67. Ibid, ss 297-298, 301-304.
68. IA Act, supra note 3, ss 47(1), 51(3).
69. CERA, supra note 4, s 299.
70. Project List, supra note 8, at Schedule, ss 2(b), (3)(b).
71. CERA, supra note 4, s 298(3).
72. Natural Resources Canada, “Report on Plans and Priorities, 2016-2017” (2016) at 47, online: <http://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/plansperformancereports/rpp/2016-2017/pdf/NRCan_RPP_2016-17-eng.pdf>.
73. Michael Paunescu, Natural Resources Canada, “Marine Renewable Energy: Global and Canadian Overview”, Presentation to IEA-RETD Workshop (27 September 2012) at 11-12, online: <http://iea-retd.org/wp-content/uploads/2012/10/11-Paunescu-Canada1.pdf>.
74. Discussion Paper, supra note 20 at 7.