INTRODUCTION

Offshore renewable energy (“ORE”) sources — offshore wind, tidal and wave energy — have the potential to materially benefit the four provinces of Atlantic Canada.^[1] Through project work, clean power exports and the invigoration of offshore supply chains, ORE activity can drive sustainable economic activity in a region of historically low growth. Nor are ORE’s benefits limited to the economy. Shifting to ORE sources can help achieve net-zero goals and, one hopes, mitigate the effects of climate change that particularly threaten coastal communities: rising seas, erosion and damage to ocean ecosystems.

To borrow a phrase from Justice Gerald La Forest, the “full and rational development”^[2] of the ORE sector in Atlantic Canada requires effective federal legislative involvement, preferably in close cooperation with the provinces.^[3] Until recently, Parliament was absent from the ORE legislative space, leaving it to the provinces, whose ability to regulate ORE is restricted to provincial territory.^[4] But change is underway. In August 2019, the Canadian Energy Regulator Act^[5] (“CERA”), Part 5 of which provides a framework for federal regulation of ORE activities, entered into force. And at the time of writing, Natural Resources Canada had commenced engaging stakeholders on the department’s proposed approach to developing the Offshore Renewable Energy Regulations (“ORER”) to implement Part 5.^[6]

Federal progress in the ORE legislative space is promising for Atlantic Canada’s ORE sector, but key issues remain unsettled. This paper examines the current state of the federal ORE regulatory regime and some issues that may affect the regime’s ultimate effectiveness. For context, we first briefly describe the main ORE technologies and the activity occurring in Atlantic Canada’s ORE sector. We then describe the jurisdictional framework and disparate regulatory approaches taken by the Atlantic Provinces to date. With this context in mind, we examine and assess the new federal ORE regime under Part 5 of CERA and the ORER. Finally, we identify some potential shortfalls of CERA and propose some solutions.

A) ORE TECHNOLOGIES AND ACTIVITY IN ATLANTIC CANADA

For the purposes of this paper, ORE refers to three categories of renewable energy sources that are derived from or situated in marine (i.e. ocean) waters: offshore wind; tidal energy; and wave energy. The following section summarizes these categories and their occurrence in Atlantic Canada.

i. Offshore Wind

Offshore wind is an established commercial technology, having been used in Europe for three decades.^[7] Similar to onshore wind farms, offshore wind farms use wind to drive turbines in order to generate electricity. The turbines used offshore are essentially the same as onshore technology, but adapted for harsh marine environments. Offshore wind turbines may be installed on substructures fixed to the seabed, or on floating substructures that are anchored in place. Fixed substructures account for the majority of installed capacity globally.^[8] Floating substructure technology is largely in the developmental stages,^[9] but in 2017, the world’s first full-scale floating wind farm, Hywind Scotland, began operating.^[10] Floating substructures are anticipated to represent an increasing share of substructures in the future.^[11]

There are unique advantages associated with offshore wind farms. These include: stronger, more consistent wind (including during daytime, when demand is highest); spatial proximity to coastal load centres; the absence of height or noise restrictions; decreased competition for space; and, decreased public opposition.^[12] These advantages have contributed to manufacturers developing larger, more efficient, higher capacity machines for the offshore.

Siting wind farms in offshore also has disadvantages. Offshore wind farms are more costly and difficult to construct than their onshore counterparts. Corrosion and punishing weather conditions require more maintenance and shorten equipment lifespans. Installations are also at risk of collision with vessels and icebergs.^[13]

At time of writing, there are no offshore wind farms operating in Atlantic Canada or, indeed, Canada. However, wind farms have been proposed for sites off each Atlantic Province.^[14]

ii. Tidal Energy

Tidal technologies aim to generate electricity by harnessing the hydrokinetic energy of tidal currents. There are four main technologies: tidal streams; tidal barrages; tidal lagoons; and dynamic tidal power. They are currently in the demonstration, pre-commercial and, in the case of dynamic tidal power, conceptual stages. Briefly:

• Tidal stream generators employ underwater turbines to capture energy from currents.
• Tidal barrages and tidal lagoons operate similar to hydroelectric dams. Tidal barrages are dams that enclose tidal estuaries, allowing water to enter the estuary as tides rise. The barrage is closed at high tide to capture a reservoir of water, which is then released through a turbine at low tide. A tidal lagoon operates on similar principles to a barrage, but involves constructing an artificial lagoon rather than exploiting an estuary.
• Dynamic tidal power involves capturing energy from tidal currents that move parallel to shore. Purely conceptual at present, dynamic tidal power involves a long T-shaped dam extending perpendicularly from the coast, generating electricity as tidal currents pass through turbines embedded in the structure.^[15]

Unlike wind, tidal energy is regular and largely predictable. It is particularly promising for New Brunswick and Nova Scotia, whose respective boundaries likely extend into the Bay of Fundy. The estimated theoretical potential of Bay of Fundy tidal energy is up to 60,000 MW of energy, of which up to 2,400 MW may be extracted without significant impact on the marine environment.^[16]

Tidal activity in Atlantic Canada to date has been limited to Nova Scotia. The in-stream barrage at Annapolis Royal ceased operating in 2019 and will be decommissioned,^[17] but various tidal technologies have been tested or are underway at the Fundy Ocean Research Center for Energy (FORCE) tidal testing site in Minas Passage.^[18] Marine Renewables Canada recently described tidal activity in Nova Scotia as follows:^[19]

Currently, approximately 30 MW of renewable electricity is permitted and under development. At FORCE, DP Energy will be developing its Uisce Tapa project, a 9 MW project awarded $29.7 million by the Government of Canada under its Emerging Renewable Power Program (ERPP). More recently, Sustainable Marine was awarded $28.5 million through the ERPP to deliver up to 9MW at the FORCE site using its PLAT-I floating in-stream tidal energy technology and BigMoon Power was successful in winning a bid to occupy FORCE’s vacant berth. In addition to these larger projects, there a number of smaller developments underway in other areas of the Bay of Fundy, with Nova Innovation, Jupiter Hydro, and New Energy Corporation all having received permits.

While the sector has not grown as quickly as expected, the technology remains promising. As Marine Renewables Canada notes, “modelling suggests that the rates of growth seen in the offshore wind sector in the last 20 years will be reproduced in the wave and tidal sector between 2030 and 2050.”^[20]

iii. Wave Technology

Wave technologies generate electricity from the surface motion or underwater pressure fluctuations caused by wave action. There are various wave technologies undergoing testing and consideration at the demonstration and conceptual stages. Canada, with its abundance of coastline, could benefit from the commercialization of wave technology. Some estimate the extractable potential for wave energy in Canada at 16,000 MW.^[21]

British Columbia is currently the epicentre for Canada’s wave energy research and development, with research projects underway. There is also significant wave energy potential in Atlantic Canada,^[22] but no wave energy projects are active on the East Coast.

B) JURISDICTIONAL ISSUES AND EXISTING PROVINCIAL ORE REGULATION

The nascent federal foray into ORE regulation cannot be effectively assessed without understanding the constitutional principles that complicate this legislative subject, and noting the current state of provincial efforts in this area. As Justice La Forest points out, “federal-provincial cooperation will on many occasions be required for a full and rational development of water resources.”^[23] Developing “full and rational” regulation of ORE is just such an occasion.

i. Constitutional Framework – Division of Powers and Boundary Issues

A full exposition of the jurisdictional and unsettled state of marine boundaries in Atlantic Canada is beyond the scope of this paper.^[24] Below is a summary of the relevant issues.

Federal Legislative Authority and Property

The bulk of legislative power over those aspects of ORE that occur at sea falls to Parliament. Crucial to ORE is Parliament’s residual power to “make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces”.^[25] This clause gives Parliament the authority to regulate offshore oil and gas activities occurring beyond provincial territory,^[26] and it will similarly apply to any ORE activity in such areas.

Additionally, Parliament has exclusive jurisdiction over the ocean-related classes of subjects enumerated at Section 91. Section 91 allocates authority to Parliament over the following: “Beacons, Buoys, Lighthouses, and Sable Island”; “Navigation and Shipping”; “Sea Coast and Inland Fisheries”; and “Ferries between a Province and any British or Foreign Country”.^[27] Of these, navigation and fisheries are particularly important powers in relation to ORE activities.

Federal authority is also relevant to the regulation of trans-boundary transmission lines and energy exports. Parliament may legislate in respect of matters “expressly excepted” from the powers assigned exclusively to the provinces,^[28] while provincial power to regulate “local works and undertakings” specifically excludes international or interprovincial works and undertakings.^[29] Parliament also has declaratory authority to exempt from provincial jurisdiction undertakings wholly situate within a province, on the basis that such undertaking is for the “general advantage of Canada” or the advantage of two or more provinces.^[30]

It is also notable that Canada’s proprietary and quasi-proprietary rights as a coastal state in and to the adjacent ocean and seabed beyond its internal waters arise under international law.^[31] Because international law generally does not recognise political sub-units of federal states,^[32] the rights to ocean and seabed resources conceded by international law fall to the federal government.^[33] Thus, the Oceans Act provides that, unless within a province, the seabed and subsoil beneath Canada’s internal waters and territorial sea vest in the federal Crown.^[34] Similarly, all rights to the seabed or subsoil beneath the exclusive economic zone, and to the continental shelf, vest in the federal Crown.^[35]

Aside from ORE-specific regulation under Part 5 of CERA, certain federal laws will apply to ORE projects. Some federal legislation will apply only to ORE projects located outside provincial territory. For instance, the Physical Activities Regulations^[36] designate activities related to certain offshore wind and tidal projects occurring in “offshore areas” (defined by reference to CERA as being outside a province)^[37] as being subject to the Impact Assessment Act (“IAA”).^[38]

In other cases, regulatory requirements under paramount federal legislation will apply to ORE projects even if sited within provincial marine areas. For instance, regulatory and permitting requirements under the following federal laws (among others) will be overlaid on top of provincial requirements for ORE projects sited in provincial territory:^[39] Canadian Navigable Waters Act;^[40] Canada Shipping Act, 2001;^[41] Fisheries Act;^[42] Species at Risk Act;^[43] Migratory Birds Convention Act;^[44] and the Canadian Environmental Protection Act, 1999.^[45]

Provincial Legislative Authority and Property

The provinces clearly have powers over key land-based aspects of ORE, including the regulation of electricity within the province. Further, where the Atlantic Provinces’ boundaries extend to marine areas, they control the seabed and have jurisdiction over ORE projects sited in these areas.

Provincial authority over the following legislative subjects is relevant to ORE: the management and sale of the public lands belonging to the province; local works and undertakings; property and civil rights; and all matters of a merely local or private nature.^[46] These powers are particularly relevant to land-based aspects of ORE, such as the construction and operation of shore-based infrastructure, the connection of ORE power to provincial power grids, the regulation of power purchase agreements and utilities within the province, environmental regulations, and labour and employment rules.

Section 92A is also relevant, providing exclusive authority to make laws in respect of the “development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.”^[47] Provinces have property in land and resources and may make laws only “within” the respective province.^[48] The section 92A power is crucial to a province’s ability to regulate ORE projects in marine areas within that province’s territory.

It is thus unfortunate that the marine boundaries of the Atlantic Provinces are, in some cases, uncertain.^[49] The general rule is that the “realm” and thus a province’s territory ends at the low water mark, unless specifically extended by Parliament.^[50] There are some applicable exceptions to this rule, however. First, at common law, inland waters, such as harbours, bays or other waters lying “between the jaws of the land” (inter fauces terrae), form part of the adjacent county, and thus the province.^[51] To the extent that ORE is sited within such inland waters, it is relatively clear that the relevant province controls the seabed and can legislate in respect of ORE projects sited therein.

A second exception is where a province’s pre-Confederation boundaries were defined to encompass marine areas beyond the low water mark and outside land inter fauces terrae. Such boundaries became fixed at the time of union, and the land, mines and minerals therein that belonged to the province at union continued to belong to the province.^[52] The result in such cases is that the province owns the seabed and, by virtue of ss. 92A(1)(c) of the Constitution Act, 1867, will have jurisdiction over ORE projects in such areas.

As Professor Doelle et al note, the Atlantic Provinces have unsettled historical claims to various marine areas, including to pre-Confederation jurisdiction over three-nautical mile territorial seas.^[53] Importantly, New Brunswick and Nova Scotia have strong historical claims that their pre-Confederation boundaries extend to the middle of the Bay of Fundy, while New Brunswick may claim to share the Baies des Chaleur with Quebec.^[54] But these claims have not, to the authors’ knowledge, been clearly conceded by the federal Crown.^[55] The precise limits of Atlantic Provinces’ marine territory and thus the extent of their primary jurisdiction over ORE projects remains uncertain.

ii. Existing Provincial Approaches to ORE

CERA and other federal laws will operate in marine areas that abut provincial marine areas and will govern some aspects of ORE projects sited in provincial marine areas. To date, only NS has enacted ORE specific legislation. NL, NB and PEI have different energy mixes and policy priorities, but may follow suit with ORE-specific regulation as technologies progress. A detailed examination of how the Atlantic Provinces’ energy legislation applies to ORE is beyond the scope of this paper. The following section provides an overview of current provincial approaches to ORE.

New Brunswick

NB’s generation results from a roughly equal portion of renewables, nuclear and fossil fuels. Between renewables and nuclear power, about 70 per cent of the province’s electricity is from non-emitting sources. Hydro accounts for the bulk of renewable generation, followed by wind and biomass. In addition to generation for domestic consumption, NB also generates about three-quarters of PEI’s electricity.^[56]

NB’s Electricity Act^[57] does not specifically address ORE and the province has generally taken a cautious approach to ORE. In 2007, the Department of Natural Resources developed an interim policy on allocating Crown lands in support of tidal energy research, which was replaced in 2011 by the Allocation of Crown Lands for Tidal In-Stream Energy Conversion Projects policy.^[58] As the title suggests, the policy is limited to land tenure requirements for tidal projects. It expressly excludes any application to wave energy or offshore wind projects.^[59] NB’s Allocation of Crown Land for Wind Power Projects policy does not apply to submerged Crown lands.^[60] Similarly, NB’s policy on submerged Crown lands expressly excludes the development of wave, wind and tidal energy projects.^[61]

Newfoundland & Labrador

NL is Canada’s third largest hydroelectric generator, and a significant exporter of electricity. In 2018, NL generated around 96 per cent of its total generation from renewable sources, with the vast bulk being hydro and a small portion from wind.^[62]

NL’s Electrical Power Control Act, 1994^[63] does not specifically address ORE. In December 2021, the NL government released a Renewable Energy Plan^[64] that outlines a five-year plan for pursuing renewable energy opportunities. It does not appear that ORE is a priority focus for the province. The plan describes the province’s undeveloped renewable resources in the following terms:^[65]

However, the province’s wind data, demonstrates a consistently strong resource that few jurisdictions can match. This offers potential opportunities to provide grid energy, power offshore oil and gas, and power the production of green hydrogen/ ammonia) for export.… Further, as the province has vast ocean access, some participants raised the future potential of offshore wind, as well as wave/ tidal generation as technology becomes more commercially available and economic. [Emphasis added]

The plan does express the government’s intention to review and update the province’s regulatory framework with a view to facilitating “foreseeable renewable energy development scenarios.”^[66]

Interestingly, efforts to move NL’s active offshore oil and gas sector to net-zero emissions through electrification provide impetus for facilitating ORE and, in particular, offshore wind. NL’s renewables plan notes as follows:^[67]

Newfoundland and Labrador’s offshore oil and gas platforms are primarily powered by natural gas that is produced as a by-product of the offshore oil extraction process.… To achieve its net-zero goal, a multi-faceted approach is envisioned, including electrification from onshore or offshore renewable energy projects.

In this regard, the oil and gas industry’s not-for-profit association, Energy Research & Innovation NL, with funding from NRCan’s Emission Reduction Fund, has commissioned a project to examine the suitability of floating wind concepts to power offshore oil and gas facilities.^[68]

Prince Edward Island

PEI imports about 75 per cent of its consumed electricity from NB. With respect to generation on the Island, in 2018 onshore wind farms generated 99.2 per cent of total generation, with the balance made up of oil and diesel generation for peaking and emergency back-up.^[69] The province’s Electrical Power Act^[70] and Renewable Energy Act^[71] do not specifically address ORE. PEI’s Provincial Energy Strategy 2016/2017^[72] provides a ten-year strategy aimed at developing a more sustainable and energy independent province. The strategy is not optimistic about PEI’s tidal potential:^[73]

As indicated, even with projected reductions in tidal energy costs, tidal is still forecast to be considerably more expensive than other renewable energy resources for the foreseeable future. Previous research had suggested that the Northumberland Strait area of the Island offered some tidal energy resource potential. Further analysis of this region indicates that the maximum tidal currents are weak, less than 2 knots, and well below the benchmark flow speed of 4 knots for present-day technology. Therefore, the Provincial Government will continue to monitor developments with respect to tidal energy, in particular the potential for meaningful cost reductions. However, in terms of concrete actions, there are other, more cost-effective, actions we can take in the next ten years.

PEI’s strategy is decidedly more bullish on wind energy than tidal, both with respect to generation for consumption on the Island and opportunities to export wind power to the New England market.^[74] However, the strategy does not separately consider offshore wind as a potential generation source.^[75]

Nova Scotia

NS is first mover among the Atlantic Provinces in relation to regulating ORE and viewing developing the tidal sector in particular as a priority opportunity. In 2012, the province published a Marine Renewable Energy Strategy, summarized as follows: ^[76]

The Strategy consists of three main plans to address Research, Development, and Regulatory initiatives that have been established to achieve Nova Scotia’s vision to be a global leader in the development of technology and systems that produce environmentally sustainable, competitively priced electricity from the ocean. Wave and offshore wind power are part of the mix in the strategy, but tides are the primary focus, given Nova Scotia’s unique advantage in developing and growing a new tidal industry.

Following on the above strategy, the province introduced the Marine Renewable-energy Act (“NS MRA”) in December 2015, and it entered force in January 2018.^[77] Prior to the enactment of the NS MRA, ORE development in NS was effectively limited to the deployment of in-stream tidal energy devices at the FORCE site in the Bay of Fundy. Permitting was facilitated through the One-Window Standing Committee comprising a litany of federal and provincial regulators,^[78] which provided proponents access to applicable departments to discuss and review a proposed project. Projects connected to Nova Scotia Power Inc.’s (“NSPI”) electricity grid required among other interconnection requirements, a Developmental Tidal Feed-In Tariff under the Renewable Electricity Regulations.^[79]

Under the NS MRA, proponents no longer need to fit within the FORCE or feed-in tariff regimes, and the regime has expanded from in-stream tidal to contemplate permitting projects for waves and “winds blowing over marine waters.”^[80] Proponents must have a licence or permit issued under the Act in order to construct, install or operate within a marine renewable-energy priority area a generator, or a cable or any other equipment or structure used or intended to be used with a generator.^[81] The Act designates two marine renewable energy “priority areas”, currently located in the Bay of Fundy and Cape Breton’s Bras d’Or Lakes.^[82] Smaller “marine renewable-electricity areas” (MREAs) are designated within the larger Bay of Fundy priority area; currently these are the FORCE, Digby Gut, Grand Passage, and Petit Passage MREAs.^[83] The only type of “connected generators” (i.e. generators producing ORE electricity for use or consumption onshore) that currently may be licensed to operate in each of these MREAs are in-stream tidal-energy converters.^[84] However, the province may by regulation add additional technologies that may be licensed within the MREAs.^[85] Technologies other than in-stream tidal may be operated under permit regardless of location, provided they involve “unconnected generators”.^[86] A limited demonstration permit program of up to 10 MW capacity is also available, which allows connected generators of up to 5 MW nameplate capacity to operate outside MREAs.^[87]

It is notable the marine spaces claimed pursuant to NS MRA reflect NS’s historical claims to marine areas, particularly its claim to roughly half of Canada’s Bay of Fundy. The Fundy Area of Marine Renewable-energy Priority (“Fundy Priority Area”) described at Schedule B to the NS MRA encompasses some 7,260 square kilometres of territory in and around the Bay of Fundy, up to its shared border with NB.^[88] However, Schedule B expressly excludes from the Fundy Priority Area “any private or federal lands or Provincial islands within” the bounds described at Schedule B. Since NS’s historical claim has not been settled by courts nor fully conceded by Canada,^[89] the territorial application of the NS MRA remains uncertain.

The above overview indicates that three of the four Atlantic Provinces have not yet developed regulatory frameworks for ORE. This does not mean that ORE cannot fit within these provinces’ existing energy legislation. However, it does provide an opportunity for cooperation with the federal government and each other in the development of a more comprehensive management system. NS, as first mover in the ORE legislative space, has existing legislation that must operate alongside and in conjunction with CERA. However, the line that divides the territorial application of the NS MRA and CERA will be unclear unless Canada and NS take action to clarify that issue.

C) THE FEDERAL REGIME UNDER CERA

Bearing in mind the above context, the following section examines Part 5 of CERA, NRCan’s approach to the ORER, and current guidance from the federal government on the process for securing land rights for ORE sites in federal marine areas.

i. Part 5 of CERA

Part 5 of CERA addresses the permitting of ORE projects and offshore power lines and, together with the pending ORER, will be the primary legislation for ORE situated outside provincial territory. A description of key elements of Part 5 follows.

Regulated Activity – ORE Projects and Offshore Power Lines

The fundamental regulatory mechanism in Part 5 of CERA is the requirement to obtain an authorization from the Commission of the Canadian Energy Regulator (“CER”) for activities related to “offshore renewable energy projects” (“ORE Projects”) and “offshore powerlines” (“OPL”). ORE Project encompasses not only generation from ORE, but also includes storage, transmission and research/assessment work.^[90] The Act defines the term as follows:^[91]

OPL is defined as “facilities constructed or operated for the purpose of transmitting electricity from an offshore renewable energy project to a province or a place outside Canada.”^[92]

Territorial Application

As noted, ORE Projects are those carried on in the “offshore area”, defined as: ^[93]

Two notable points arise from the above. First, CERA purports to apply to ORE projects sited out to the full extent of Canada’s continental shelf and superjacent waters. Canada undoubtedly has sovereign rights under the United Nations Convention on the Law of the Sea (UNCLOS) to exploit “the production of energy from the water, currents and winds” within the bounds of its 200 NM exclusive economic zone (“EEZ”).^[94] However, Canada has delineated the outer limits of its continental shelf in the Atlantic Ocean as extending beyond the 200 NM limit of the EEZ.^[95] It is not clear that Canada’s continental shelf rights support a claim for jurisdiction over ORE, particularly beyond 200 NM, where Canada cannot rely on its co-extensive and broader EEZ rights. With respect to the shelf, Canada has “sovereign rights for the purpose of exploring it and exploiting its natural resources.”^[96] However, UNCLOS defines the shelf ’s “natural resources” as “mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species”.^[97] Wind, waves and currents are non-living resources of airspace and the water column, not the seabed or subsoil. UNCLOS is clear that “the rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the airspace above those waters.”^[98]

It is thus uncertain that ORE is among the natural resources of the continental shelf to which Canada has sovereign rights under UNCLOS. Wind turbines installed to power oil and gas installations likely fall within Canada’s continental shelf rights, but whether stand-alone wind farms in the high seas fall under the continental shelf rights is another question.

If UNCLOS indeed allows coastal states to authorize ORE activity on their continental shelves beyond 200 NM, a further question is how UNCLOS’s international royalty regime will apply to any resulting ORE production. Article 82(1) of UNCLOS provides that coastal states “shall make payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles.”^[99] It seems clear that the royalty regime contemplates production of mineral resources from the seabed and subsoil. Production of ORE does not fit neatly into this scheme.

The above issues will likely stay hypothetical for some time, but if wind farms in the high seas become reality, they may require resolution.

The second point is more immediate. CERA does not clearly delineate the marine areas that Canada claims are outside a province and thus subject to CERA. As noted, the “offshore area” includes those parts of Canada’s inland waters and territorial sea “not situated in a province other than the Northwest Territories.”^[100] But CERA does not specify what portions of these waters Canada considers to be within a province. As noted above, the NS MRA similarly excludes “any private or federal lands” from its various defined marine areas without delineating those excluded areas. Together, the two statutes do not provide clear guidance to the regulated or regulator on the boundary between their respective areas of application. This is a key shortcoming of the NS and federal approaches thus far.

ORE Authorizations

The permitting requirements in Part 5 resemble those for offshore oil and gas work and activity under Part 3 of the constating legislation of the Canada-Nova Scotia Offshore Petroleum Board (CNSOPB)^[101] and Canada-Newfoundland & Labrador Offshore Petroleum Board (CNLOPB).^[102] An authorization is required in order for any person to carry on any work or activity in the offshore area related to ORE Projects or OPL.^[103] An authorization is similarly required to carry on any work or activity to construct, operate or abandon any part of an OPL that is in a province.^[104]

The CER’s Commission is responsible for providing authorizations and regulating ORE Projects and OPLs. It appears that CERA will require that the Commission issue an authorization for “each work or activity” proposed to be carried on in relation to ORE Projects or OPL.^[105] Applications for authorizations must contain any information about the ORE Project or OPL that is required by the CER or prescribed by regulation. This may include information on any facility, equipment, system or vessel related to the project or OPL.^[106] Relevant considerations enumerated in CERA include:^[107]

The above provision does not apply where the ORE Project or OPL relates to a designated project subject to an impact assessment under the IAA. In such cases, the Commission has to make its determination based solely on the report issued pursuant to ss. 51(1)(d) of the IAA by the review panel charged with the impact assessment.^[108]

CERA imposes time limits in which the Commission must issue the authorization or dismiss the application. The limit is specified by the Lead Commissioner but cannot exceed 300 days after the provision of a complete application. The time limits, however, are subject to exceptions and ministerial extensions, and there is no statutory consequence if the Commission fails to meet the specified timeline.^[109] Further, where the ORE Project or OPL at issue is a designated project subject to an impact assessment under the IAA,^[110] the 300-day timeline in CERA is modified such that the Commission must issue its decision within seven days after the day on which the Minister’s decision statement in respect of the impact assessment is posted on the internet under section 66 of the IAA.^[111]

Authorizations may be issued subject to a broad range of conditions imposed by the Commission or prescribed by regulation.^[112] These may include conditions with respect to: approvals; deposits of money; liability for loss, damage, costs or expenses related to debris; the carrying out of safety studies or environmental programs or studies; and certificates of fitness and who may issue them.^[113] In the absence of any regulations imposing parameters on Commission discretion, the Commission’s power to attach conditions to authorizations is very broad one, and one used on occasion by the CNSOPB and CNLOPB to fill legislative gaps in the regulation of offshore oil and gas activities.^[114]

As discussed below, applicants for authorizations are also required to provide the Commission with certain financial assurances regarding the applicant’s ability to satisfy liability for losses, damages and claims associated with the authorized activity.

CERA allows the Commission to vary an authorization, whether on its own initiative or on application. Authorizations are also transferable on application to the Commission. Variation or transfer of an authorization allows the Commission to impose any conditions in addition to or in lieu of those to which the authorization was previously subject.^[115]

Authorizations may also be suspended or revoked by the Commission, but only where the authorization holder applies or consents thereto, or where they have contravened a condition of the authorization. In the latter case, the Commission must provide the holder with notice of the alleged contravention and an opportunity to be heard.^[116]

Liability for Debris and Financial Assurances

CERA contains a liability regime for losses caused by “debris” from ORE Projects and OPLs, similar to that for spills and debris in Canada’s offshore oil and gas legislation. Debris means:^[117]

any facility, equipment or system that was put in place in the course of any work or activity required to be authorized under this Part and that has been abandoned without an authorization, or anything that has broken away or been jettisoned or displaced in the course of any such work or activity.

The regime covers three categories of loss: loss of non-use value, which is recoverable only by action commenced by the Crown;^[118] actual loss or damage; and any costs or expenses of the Crown reasonably incurred in taking any action or measure in relation to debris.^[119] CERA includes both fault-based and absolute liability regimes. Under the fault-based provisions, all persons to whose fault or negligence debris is attributable, or who are vicariously liable for persons who are at fault or negligent, are jointly and severally liable for the categories of loss.^[120] CERA also makes holders of authorizations jointly and severally liable for losses caused by debris as a result of the fault or negligence of any contractors they have retained.^[121]

Under the absolute liability provisions, holders of authorizations for the work or activity from which debris originated are liable without proof of fault or negligence up to the applicable limit of liability.^[122] The limits of liability are $1 billion in respect of all work or activity, except for work or activity in an area referred to in at subsection 6(1)(a) of the Arctic Waters Pollution Prevention Act,^[123] in which case the limit is the amount by which $1 billion exceeds the amount prescribed under section 9 of that Act.^[124] These limits can increase by regulation on the recommendation of the Minister.^[125] The Minister may, by order on the Commission’s recommendation, approve lower amounts for a particular authorization.^[126]

In connection with the liability regime, applicants must provide certain financial assurances to the Commission in order to obtain an authorization. First, an applicant must provide proof that it has sufficient financial resources to necessary to pay an amount determined by the Commission. The proof must be in a form prescribed by regulations or specified by the Commission in the absence of regulations. When setting the amount, the Commission is not required to consider any potential loss of non-use value.^[127]

Second, applicants must provide proof of financial responsibility in an amount determined by the Commission. The proof must be a letter of credit, guarantee, indemnity bond or other form satisfactory to the CER. The intention is to provide the CER with unrestricted access to a pool of funds out of which the CER may order that claims for losses from debris be paid.^[128]

Both forms of financial assurances must be in place for the duration of the work or activity in respect of which the authorization is issued.^[129]

Restrictions on Transfer of ORE Projects and OPL

In addition to the power to control transfer of authorizations, the Commission has a say in whether an authorization holder may dispose of or acquire rights in ORE Projects and OPL.

Authorization holders must obtain leave of the Commission by order to:^[130]

The above oversight powers are similar to those granted to the Commission in respect of pipelines under Part 3.^[131]

OPL – Application of Parts 4 & 6

Part 5 makes applicable to OPL certain provisions governing interprovincial and international power lines under Part 4, as if each reference to international or interprovincial power lines in those provisions were references to OPL, and permits or certificates referred to authorizations.^[132] These include:

Similarly, CERA makes applicable to any part of an OPL that is located in a province certain provisions of Part 6 that allow a company operating (or intending to operate) an OPL that is in a province to obtain access to land, and the compensation requirements that result therefrom.^[133] As discussed further below, CERA does not, however, address how ORE proponents can obtain seabed rights within the offshore area for the purpose of siting ORE Projects.

Interaction with Impact Assessment Act

The CERA authorization process for ORE Projects and OPL is integrated with the impact assessment processes under the IAA.^[134] As indicated above, if the ORE Project or OPL is a “designated project” subject to an impact assessment under the IAA, some of CERA’s rules relating to authorizations and time limits are modified. Pursuant to the Physical Activities Regulations made under the IAA, the following are “designated projects” for the purposes of IAA assessments:^[135]

Pursuant to the IAA, all designated projects that are regulated under CERA are subject to a mandatory assessment by a review panel, rather than the Impact Assessment Agency.^[136] Where an application under Part 5 relates to an ORE Project or OPL captured by the above provisions, the Commission is required to approve or deny the related application solely based on the review panel’s report issued under the IAA and CERA’s time limits are modified.^[137] For applications relating to projects not listed above, the Commission must consider the specific enumerated factors at s. 298(3) of CERA, excerpted above, prior to issuing its approval or denial of an authorization.^[138]

Indigenous Participation and Consultation

CERA recognizes the rights of the Indigenous peoples of Canada under section 35 of the Constitution Act, 1982,^[139] and incorporates those rights into the act.^[140] This paper does not provide a detailed exploration of how Aboriginal and treaty rights and the interests of Indigenous communities generally are taken into account in the ORE regime in Atlantic Canada. Yet it is without question that Indigenous communities in Atlantic Canada must play an active role in ORE development in the region. Not only is there a real possibility that pursuant to section 35 of the Constitution Act, 1982, Indigenous communities require consultation, and possibly accommodation, where these rights may be negatively affected by an ORE development,^[141] but CERA itself requires Indigenous participation in ORE development. For instance, one director of the CER and one full-time Commissioner must be an Indigenous person;^[142] an advisory committee for the CER is established for the purpose of enhancing the involvement of Indigenous peoples of Canada and Indigenous organizations in respect of various matters, including ORE projects;^[143] and when determining whether to issue an authorization for ORE projects, the Commission must consider Indigenous knowledge that has been provided to them and take into account the interests and concerns of the Indigenous people and their section 35 rights.^[144]

Aside from engagement within CERA or provincial regulatory processes, it is also crucial that Indigenous communities whose rights or interests may be affected by ORE activities be engaged in broader oceans use planning and management processes. As discussed further below, these would include regional and strategic assessments under the IAA or provincial environmental assessment legislation, or integrated management plans under the Oceans Act.

The involvement of Indigenous peoples in ORE development is also not necessarily limited to Indigenous communities in Canada. CERA’s definition of “indigenous peoples of Canada”^[145] is tied to the meaning assigned by the definition “aboriginal peoples of Canada” in subsection 35(2) of the Constitution Act, 1982.^[146] In R v Desautel, the Supreme Court of Canada recognized that Indigenous groups located outside Canada can be “Aboriginal peoples of Canada” for the purposes of s. 35.^[147] It is conceivable that Indigenous peoples outside of Canada may also have rights in relation to consultation and accommodation on ORE projects in Atlantic Canada. This may be particularly relevant to ORE projects near American borders, such as Passamaquoddy Bay in the Bay of Fundy.

ORE Regulations

Part 5 offers skeletal framework for the authorization process and associated requirements. The meat of what will be required of the proponents of authorized ORE Projects and OPL in terms of technical, safety, environmental and operational matters will eventually be set out in regulations. In this regard, the Governor in Council is empowered to make regulations:^[148]

As discussed below, NRCan is, at time of writing, working on developing the ORER that will flesh out the regulatory framework. Until the ORER come into effect, much detail will be left to the broad discretion of the CER or the Commission. Some key areas left to CER or Commission discretion in the absence of regulations are as follows: the CER may determine the contents of an application for an ORE authorization;^[149] the Commission may impose conditions of authorizations, including approvals, deposits, debris liability, safety and environmental studies or programs, and certificates of fitness;^[150] and, the Regulator may fix the amount payable to claimants, and the manner of payment, out of funds available under the letter of credit or other security posted by the authorization holder.^[151]

Whether the CER and Commission’s discretion under the above areas will be made subject to regulations remains to be seen.

ii. The Offshore Renewable Energy Regulations (ORER) Initiative

NRCan, with support from the CER, is currently leading an initiative to develop environmental protection and safety regulations, the ORER, to be applied to exploration, construction, operation and decommissioning of ORE Projects and OPL under CERA.^[152] Under Phase 1 of the initiative, NRCan released a discussion paper setting out its proposed approach to the ORER,^[153] and a further paper summarizing stakeholder comments arising from the Phase 1 engagement was also released.^[154] Phase 2, which is underway at time of writing, involves yet another engagement paper, addressing NRCan’s proposed technical requirements in more detail.^[155] NRCan indicated that it would accept feedback on the proposed requirements until February 21, 2022. NRCan intends to pre-publish the proposed ORER in Part 1 of the Canada Gazette in 2023.^[156]

NRCan’s current vision for the ORER will generally follow the life-cycle phases of an ORE project,^[157] broken down into the five parts summarized below.^[158]

General requirements – this first part will address general duties and responsibilities of operators of ORE projects that will apply over the project life-cycle. In this section, NRCan contemplates including requirements for: development and implementation of management systems to address safety, security, reliability and environmental matters; general operator duties; compliance with and regular updates to management plans; compliance with conditions of certificates of fitness; monitoring of compliance by personnel; support operations; safety zones; evacuation systems; general reporting obligations and incident reporting; and record keeping and document accessibility.^[159]

Site assessment work or activities – This section would address site assessment work such as surveys, geotechnical sampling and testing, installation, operation and decommissioning of measuring equipment like met masts and buoys. NRCan contemplates specifying in this section the site assessment information that is to be included in applications for authorizations for site assessment work. Applicants will be required to have CER approve a safety plan, environmental protection plan and emergency management plan prior to undertaking any site assessment work or activity. This section also includes proposed requirements for certification of vessels, aircraft landing facilities, and equipment used in these activities.^[160]

Transportation, construction, installation and commissioning – This section will set out requirements relating to activities after site assessment and leading up to the operation of the project. It is intended to apply to all components of the planned project including the generation devices, substructures and foundations, electrical service platforms, substations, inter-array and export cables, and any other permanently installed auxiliary structures. The section will address:

Some of the specific requirements contemplated include: safety, environmental protection, and emergency management plans; quality assurance programs; design requirements; approvals for facility design reports, facilities reliability reports, fabrication and construction reports; and procedures and provisions addressing certificates of fitness and certifying authorities.^[161]

Operations and maintenance – This section covers operations and maintenance work and activities, including monitoring, inspection, repairs and maintenance of the certificate of fitness. This section will require self-inspection, continuous monitoring, repairs according to an approved program and periodic maintenance. It sets out the required contents for applications for authorizations and follow up approvals. Among specific requirements are the following: safety, environmental protection, emergency management and integrity management plans; and obligations for the certifying authority in respect of the continued validity of the facility’s certificate of fitness.^[162]

Decommissioning, repowering and life extension – the final section will address the decommissioning, repowering and life extension work or activities. As with the previous sections covering the other life-cycle stages, this section will include requirements for the contents of applications for authorizations and follow up approvals. Environmental protection, safety emergency management plans will similarly be required. A final decommissioning and abandonment plan will also be required.^[163]

There are some areas that the proposed ORER do not address. First, it does not appear that the ORER will include any details around the form of proof of financial resources that applicants must provide. As noted above, in connection with the liability regime for damage caused by debris, CERA requires applicants to provide proof that the applicant has sufficient financial resources necessary to pay an amount that is determined by the Commission.^[164] That section contemplates the form of proof being either “prescribed by regulation” or “in the absence of regulations”, specified by the CER.^[165] Regulations are similarly contemplated to specify amounts, classes of claimants, and the form and manner of payments out of funds posted by proponents to enable the CER to satisfy claims relating to debris.^[166] If these issues are not addressed in the ORER or, more likely, separate regulations, they will fall to the CER’s discretion.

Second, and more significant, is the federal government’s proposed approach to the land tenure regime through which proponents will obtain authorizations to use federal seabed lands for ORE projects. NRCan has indicated that land tenure will be the responsibility of Public Services and Procurement Canada (“PSPC”) under the Federal Real Properties and Federal Immovables Act (“FRPFI Act”).^[167] This issue is examined further below.

The final content and structure of the proposed ORER of course remain subject to change following public feedback and publication in the Canada Gazette. Regulation of the matters outlined above will therefore be largely subject to Commission and CER discretion until 2024 at the earliest.^[168] Practically speaking, it seems unlikely that any ORE project in a federal area will progress through the authorization process until the supporting ORER are in force.

iii. Land Tenure Regime

CER and the proposed ORER, as noted above, do not include any land tenure process by which proponents can obtain authorizations to use federal seabed lands. NRCan explains as follows: ^[169]

ORE proponents interested in projects in federal areas will thus have to engage with PSPC under the FRPFI Act. A review of the FRPFI Act is beyond the scope of this paper. For present purposes, a few points are worth noting. First, it is not clear that the FRPRI Act applies to lands in Canada but outside a province. “Federal real property” means “any real property belonging to Her Majesty, and includes any real property of which Her Majesty has the power to dispose.”^[170] However, “real property” is defined as “land in any province other than Quebec, and land outside Canada”.^[171] By its terms, the definition of “federal real property” would thus appear to include lands within a province and lands outside Canada, but not lands that are within Canada but outside a province. Importantly, the latter would include any lands of the territorial sea that are outside a province, as such lands are, pursuant to the Oceans Act, part of Canada.^[172] It is likely that the FRPFI Act was intended to apply to all federal lands inside or outside of Canada, but the issue remains.

Second, and in any case, the FRPFI Act and regulations^[173] address rules and processes for acquisitions, administration and disposition of real property and immovables by the federal government. The legislation contains no provisions specifically addressing ORE or federal seabed lands. The FRPRI Act and its legislation provide little guidance to ORE proponents.

Third, the seabed authorization process described above is notably light on detail. PSPC has not as yet publicly released any guidance for ORE proponents about the process, application forms, expectations of applicants in terms of information and consultations, or likely timelines for obtaining authorizations.

Fourth, the process described above leaves it unclear whether PSPC will engage in a call for bids or request for proposal process in relation to specific marine areas, leave the nomination of marine areas to the ORE proponents, or a mixture of both. Given the early state of the ORE sector in Atlantic Canada, it seems likely that at least in the near term, PSPC will negotiate directly with ORE proponents. However, as the industry grows, seabed access may become more competitive and a bidding or request for proposal process may be undertaken.

Finally, the more fundamental issue is the apparent intention to bifurcate the process for securing seabed land rights from the other ORE project regulatory requirements that are centralized under CERA.

D) TOWARDS THE FULL AND RATIONAL DEVELOPMENT OF ORE: SOME OUTSTANDING ISSUES

CERA’s ORE regime is a welcome development for Atlantic Canada’s ORE sector, and will eventually facilitate the progress of ORE activity in marine areas outside of provincial territory. However, the above discussion indicates that there are several outstanding areas that stand in the way of a regulatory regime that will facilitate the full and rationale development of the ORE sector in Atlantic Canada. The following discussion highlights some of these potential barriers.

i. Land Tenure and Marine Boundary Issues

The ability to secure rights to adequate seabed lands is a key requirement for the development of the ORE industry. CERA does not address land tenure and the CER has no responsibility for this crucial regulatory component. From a proponent perspective, hiving off the land tenure regime to a separate department such as PSPC from the regulation of ORE work and activity under CER jurisdiction, as NRCan suggests is the federal government’s plan,^[174] is not an ideal approach.

A bifurcated approach increases regulatory complexity and the number of regulatory departments and agencies that ORE proponents will be required to interact with. ORE, like much offshore resource activity, is already subject to complex and multi-faceted regulatory burden.^[175] Creating a bifurcated approach when devising a new regulatory regime seems short-sighted, unless the federal government anticipates that comprehensive joint federal-provincial regulation will be negotiated in the future.

The offshore oil and gas regime under the NS and NL Accord Acts offers existing precedent for assigning land tenure and life-cycle regulation to a single lead regulator. The CNSOPB and CNLOPB have authority to issue interests in respect of any portion of the respective offshore areas.^[176] It would likely be preferable to take a similar approach under CERA.

However, if amending CERA to give the CER authority to authorize the use of federal seabed lands is not considered an option for the federal government, the regulatory burden can be mitigated through appropriate steps. Assuming PSPC remains the department charged with the seabed authorization process, it should develop and make public detailed guidelines or other guidance about the authorization process for ORE proponents. This should include information on required forms, a clear description of PSPC’s expectations in terms of informational and consultative requirements, and reasonable timelines for decisions. To the extent the requirements may overlap with those required by other federal departments and agencies, such as the CER or Impact Assessment Agency, PSPC should enter into memoranda of understanding with such agencies to delineate roles and information-sharing responsibilities, and reduce overlap wherever possible.

In the early stages of ORE activity in federal marine areas, allowing proponents to negotiate directly with PSPC for use of suitable marine areas makes sense. As activity increases, a call for bids or request for proposals process with clear rule would be appropriate. In both cases, clear guidance on the process should be made available to proponents, and preferably public.

Finally, a significant issue for the land tenure regime is the continued uncertainty around potentially competing claims to marine areas by the federal and provincial governments, most notably in the Bay of Fundy, but also other areas. NRCan’s Discussion Paper hints at this issue by indicating that PSPC will require proponents to provide “a record of consultations with adjacent provinces whose government might assert a competing claim to the subject area, in order to obtain provincial collaboration.” ORE proponents — and their investors or lenders — will require some degree of certainty around securing seabed rights. The prospect of competing claims arising at some point during the seabed authorization process creates significant uncertainty, as such claims would likely cause delay or ultimately prevent securing any rights to the disputed area. It is unlikely that proponents will welcome being thrust into the role of initial intermediator between the federal and provincial governments in respect of such claims.

As Professor Doelle et al note, delineation of federal/provincial boundaries in Atlantic marine areas, whether through confrontation, settlement, or a cooperative approach, would be particularly helpful for regulation of the ORE industry.^[177] Settlement of marine boundaries between the federal government and all four Atlantic Provinces would be ideal. But competing governmental claims to marine areas in Atlantic Canada do not need to be fully and finally settled in order to overcome the uncertainty they create for ORE regulation. The “without prejudice” joint federal-provincial management of offshore oil and gas under the Accord Acts^[178] is an example of a legislative approach that effectively resolves boundary disputes and creates certainty for regulated entities without resolving claims between the governments.

ii. Minimizing Complexity through Joint Management

ORE projects will inevitably be subject to an array of regulatory requirements from a variety of regulators, including, among others, the CER, Transport Canada, Fisheries and Oceans Canada, the Impact Assessment Agency. Projects in federal areas involving transmission into or facilities within provincial territory will also encounter provincial regulators. Uncertainty around marine boundaries compounds the complexity, while ORE proponents will also face a different regulatory system for projects sited in areas subject to the NS MRA. The other Atlantic Provinces may ultimately create their own, potentially inconsistent, ORE regimes.

Such an outcome will not effectively facilitate development of the ORE sector in the region.^[179]

As we have argued elsewhere, there is a strong case that joint federal-provincial management of ORE, achieved through political negotiation rather than the strict application of constitutional principles, is the more efficient, more expert, fairer and more responsive basis ORE management.^[180] A joint federal-provincial effort similar to the offshore oil and gas regime would be an optimal solution to the boundary issues and problems arising from competing and overlapping federal and provincial regimes.

Other benefits could be achieved through a joint management approach, including regulatory consistency. If all or some Atlantic Provinces and the federal government could reach agreement, joint management could achieve regulatory consistency across Atlantic Canada waters, rather than competing and possibly inconsistent regulations. As we have stated elsewhere:^[181]

A federal legislative basis for regulation constrains the coastal provinces’ ability and occasional wont to enact regulatory schemes that differ from, and may be incompatible with, neighbouring provincial regimes. Federal primacy can impose a measure of regulatory consistency throughout Atlantic Canadian waters. Regulatory stability is attractive to industry and can enhance public trust, since industry rules are not in constant flux. A federally imposed constraint may help avoid a race to the bottom among coastal provinces competing for ocean resources investment. The Newfoundland and Labrador and Nova Scotia offshore oil and gas regime provides a good example, as it is based on the same rights issuance system and operational laws governing all oil and gas activities in the federally regulated “frontier” lands and offshore.

From the federal perspective, it appears that CERA’s Part 5 and NRCan’s work on the ORER do not preclude a later joint management approach. NRCan has confirmed federal openness to joint management:^[182]

The regulations made under the CER Act will apply to ORE projects in Canada’s offshore areas. However, respecting the long history of federal-provincial collaboration in the joint management of energy resources in the offshore (e.g., laws establishing the Canada-Nova Scotia and Canada-Newfoundland and Labrador Offshore Petroleum Boards) this work does not prevent Canada and interested provinces from exploring joint management approaches for ORE projects in the future. Any potential federal-provincial joint management regime for offshore renewables will also require safety and environmental protection regulations. Therefore, these regulations developed under the CER Act could serve as the basis for similar regulations under potential future offshore energy joint management regimes.

The Atlantic Provinces’ respective positions are less clear. At time of writing, there is no public indication that any of these governments are pursuing a joint management solution.

iii. Provincial Benefits of ORE in Federal Areas

One gap in the federal approach to ORE under CERA, at least from a provincial perspective, is the absence of provisions requiring that benefits from ORE activity flow to the adjacent provinces. This stands in contrast to the offshore oil and gas regime. In that context, the federal government has conceded that NS and NL should receive fiscal revenues from offshore production and be the primary beneficiaries of offshore employment and industrial activity.

Under the Accord Acts, benefits from offshore development and related activities flow to the respective provinces in two ways. First, provincial oil and gas fiscal legislation, setting out royalties, interest and penalties, is effectively applied to the offshore areas as if the petroleum were produced from areas within the provinces.^[183] Royalty-type regimes may not be readily applicable to the ORE context, but provinces should arguably nevertheless have responsibility for and control of revenues from ORE activities through provincial fiscal instruments.

A more fitting mechanism to transfer benefits of ORE activity to the provinces is the Accord Acts’ requirement proponents to submit and obtain approval of “benefits plans” as a condition of operating offshore.^[184] A benefits plan is: ^[185]

a plan for the employment of Canadians and, in particular, members of the labour force of the Province and, subject to paragraph (3)(d), for providing manufacturers, consultants, contractors and service companies in the Province and other parts of Canada with a full and fair opportunity to participate on a competitive basis in the supply of goods and services used in any proposed work or activity referred to in the benefits plan.

Under the Accord Acts, the offshore petroleum boards must approve benefits plans as a pre-condition for the issuance of work authorizations and the approval of development plans.^[186] Benefits plans must contain provisions intended to ensure that:^[187]

There is no obvious reason why the federal agreement that provinces should be the beneficiaries of offshore industrial and employment activity should not also apply to the ORE regime.^[188]

Of course, any scheme to ensure the adjacent provinces receive employment and industrial benefits from ORE activity should be carefully designed so that any obligations on proponents will not stifle activity in the nascent industry. This would apply particularly to new and emerging technologies, such as tidal and wave power.

If one or more of the Atlantic Provinces seeks to develop a joint ORE management regime with the federal government, the Accord Acts would likely form a precedent for negotiation, and benefits plans might thus be on the table. Absent a joint regime or significant pressure from the provincial governments, it is hard to imagine a gratuitous federal amendment to CERA to include a benefits scheme in favour of the provinces.

iv. Broader Planning and Management Tools – Balancing Competing Interests

One of the challenges to an effective regulation of ocean resources is how to ensure that different and sometimes conflicting human activities are effectively planned for and balanced, while also protecting the marine environment. This is no easy task. A plethora of stakeholders will have interests in the marine areas where ORE facilities may be built and operated. Consideration must be given to the interaction between the ORE activities with other valid competing ocean uses, including fishing, aquaculture, offshore oil and gas, shipping, and recreational activities. However, the multitude of potentially competing established ocean uses should not only be seen as a hurdle for ORE industry and its regulators to overcome, but also as an opportunity. As noted by Marine Renewables Canada, studies have found that ORE can “provide a cost competitive solution for ocean industries that require access to consistent reliable and clean power untethered to land-based power grids… These include traditional ocean sectors such as shipping, offshore oil and gas, fisheries and ports”.^[189] Carefully planned co-location of ORE and other ocean industrial activities could provide real benefits in terms of maximizing the use of ocean space.

Aside from human activities, consideration must also be given to the competing conservation imperative. In recent years, the federal government has designated a number of areas as marine protected areas (“MPAs”) under the Oceans Act, including the Laurentian Channel,^[190] Banc-des-Américains,^[191] Tuvaijuittuq,^[192] and St. Ann’s Bank MPAs.^[193] These and other marine conservation efforts must also be carefully planned for and balanced with sustainable ocean resource activities. While offshore development may pose a threat to ocean biodiversity, ORE production may also mitigate the effects of climate change and thereby may reduce the negative effects of climate change on ocean ecosystems.^[194] Potential project specific risks must therefore be weighed in a broader context.

A truly effective regulatory system will fairly and efficiently balance the sometimes competing imperatives of sustainable economic activity (involving a variety of occasionally conflicting industries), other ocean uses and conservation. Further, it must be able to do so in the complex and uncertain jurisdictional framework in the offshore. It seems unlikely that the regulators charged with making ORE project approval decisions — whether the CER or provincial — will be able to do this without the support of broader ocean planning and management tools. As others have suggested in the context of tidal power in NS, what is required is “a broad policy context, an integrated planning process, and a fair and efficient regulatory process that implements the results of the first two steps.”^[195] From a broader regional perspective, the policy and planning processes would ideally also involve collaboration among the Atlantic Provinces and federal government.

Given the jurisdictional complexities, developing integrated planning and management processes on an inter-jurisdictional basis seems a tall order. But there are tools that may assist. For instance, strategic assessments or regional assessments of ORE activities in Atlantic Canada^[196] could be valuable for planning purposes, and smooth the path for eventual project assessments and approvals. As Professors Doelle and Sinclair have observed:^[197]

Among the key benefits are the ability to address broader policy issues, to consider the interaction among a range of past, current and possible future activities, to improve the consideration of alternatives and cumulative effects, to streamline assessments at the project level, and to attract better projects as a result of improved clarity on what types of projects are desired.

Another tool is the further development of integrated management plans for ocean regions under the Oceans Act. The Oceans Act calls for the Minister of Fisheries and Oceans to lead the development of integrated management plans for Canada’s oceans. Per Section 31: ^[198]

31 The Minister, in collaboration with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected aboriginal organizations, coastal communities and other persons and bodies, including those bodies established under land claims agreements, shall lead and facilitate the development and implementation of plans for the integrated management of all activities or measures in or affecting estuaries, coastal waters and marine waters that form part of Canada or in which Canada has sovereign rights under international law.

Fisheries and Oceans Canada (“DFO”) explains its view of integrated management as follows:^[199]

The Integrated Management concept involves comprehensive planning and managing of human activities to minimize the conflict among users; a collaborative approach that cannot be forced on anyone; and a flexible and transparent planning process that respects existing divisions of constitutional and departmental authority, and does not abrogate or derogate from any existing Aboriginal or treaty rights.

DFO’s integrated management approach recognizes the need to include provincial and Indigenous authorities, affected ocean industries and coastal communities in the management process.^[200] If well designed and implemented, integrated management plans may offer a valuable forum for planning, management and possible resolution of conflicting priorities and ocean uses.

In this regard, continued development of the Regional Oceans Plan for the Scotian Shelf / Atlantic Coast / Bay of Fundy, which commenced following the 2012 completion of the Eastern Scotian Shelf Integrated Management (ESSIM) initiative, could prove useful in the regulation of ORE.^[201] This Regional Oceans Plan encompasses all of the Bay of Fundy, the Atlantic Coast off NS out to the outer limit of the territorial sea, and the offshore Scotian Shelf to the outer limit of the EEZ.^[202] It expressly contemplates ORE activities, noting as follows:^[203]

The Bay of Fundy planning area has been the focus of efforts to harness renewable tidal energy. There is currently one tidal power station in the bay. Seven locations have been identified as potential sites for tidal in-stream turbines on the Nova Scotia side of the bay, while eight sites have been identified on the Ne Brunswick side. In-stream technology remains at the testing stage. Other parts of the bioregion have been identified as having high potential for wind and wave energy. As interest in this sector increases, it will be important to coordinate between this and other sectors, and to consider the environmental impacts of any renewable energy developments.

This plan, which includes oceans management (including marine spatial planning), development and management of MPAs, and collaboration and engagement, could form part of a broader management system for ocean use planning in the applicable region. Similar plans, such as the Gulf of St. Lawrence Integrated Management Plan^[204] and Placentia Bay/Grand Banks Large Ocean Area Management Plan,^[205] may also assist.

The upshot is that CERA, or any eventual joint federal-provincial ORE management scheme, will be more effective to the extent broader oceans planning and management tools are leveraged. Such tools should engage applicable federal and provincial regulators, ORE and other oceans industries and Indigenous and non-Indigenous coastal communities. Thoughtfully crafted strategic and regional assessments and integrated management plans may provide such tools.

CONCLUSION

The continued development of the ORE sector in Atlantic Canada does not depend solely on having an effective regulatory regime. Economic considerations, such as price and market access, will be key determinants, among other factors. Nevertheless, a comprehensive and efficient regulatory regime is a necessary if not sufficient condition to ORE’s success in the region. In this regard, progress on the federal ORE regulatory regime under CERA’s Part 5 is a welcome development. The eventual development of the ORER should eventually help facilitate ORE activity, and offshore wind in particular, across the region. As this paper has shown, however, there remain several significant opportunities to improve upon the ORE regulatory environment. The continued uncertainty around the Atlantic Provinces’ maritime boundaries, and thus jurisdictional limits, is an ongoing barrier that should be addressed by both levels of government. This issue could be resolved through a joint federal-provincial management scheme or schemes. Such a regime would also help minimize regulatory complexity and inconsistency in the region. Formal regulatory mechanisms to ensure employment and industrial benefits from ORE activities flow to the adjacent province would also be welcome. Giving responsibility for the federal land tenure regime to a separate department, rather than the CER under CERA, seems likely to create unnecessary complication. Finally, any regime — whether solely federal under CERA or a joint management — would benefit from the use of broader governance tools, such as regional or strategic assessments and the continued development of integrated management plans under the Oceans Act. Addressing these issues on a cooperative basis would go a long way towards achieving the full and rational development of Atlantic Canada’s ORE resources.

 

* Daniel is a partner and Ocean Economy Team lead in the Halifax office of McInnes Cooper. Lucia is an associate in McInnes Cooper’s Moncton office.

1. Comprising New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland & Labrador.
2. Gérard V La Forest, Water Law in Canada: The Atlantic Provinces (Ottawa: Department of Regional Economic Expansion, 1973) at 17 (“La Forest”).
3. See Meinhard Doelle et al, “The Regulation of Tidal Energy Development Off Nova Scotia: Navigating Foggy Waters” (2006) 55 UNBLJ 27 at 34–41 (“Tidal Energy”); See also Sara 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), at 6-7, online: <cirl.ca/sites/default/files/Occasional%20Papers/Occasional%20Paper%20%2361.pdf> (“Ocean Economy”); See also Daniel Watt, “The Impact Assessment Act, Canadian Energy Regulator Act and Offshore Energy: A View from Atlantic Canada” (2018) 6:2 Energy Regulation Q 41 at 47 (“IAA Atlantic Canada”).
4. Tidal Energy, supra note 3 at 34–41.
5. Canadian Energy Regulator Act, SC 2019, c 28, s 10 (“CERA”).
6. See Natural Resources Canada, “The Offshore Renewable Energy Regulations Initiative” (last visited 10 February 2022), online: <rncanengagenrcan.ca/en/collections/offshore-renewable-energy-regulations-initiative> (“ORER Website”).
7. National Energy Board, “Canada’s Adoption of Renewable Power Sources: Energy Market Analysis” (May 2017) at 25, online (pdf ): Canada Energy Regulator <cer-rec.gc.ca/en/dataanalysis/energy-commodities/electricity/report/2017-canadian-adoption-renewable-power/2017cnddptnrnwblpwr-eng.pdf> (“Energy Market Analysis”).
8. National Renewable Energy Laboratory, “2014–2015 Offshore Wind Technologies Market Report”, Technical Report NREL/TP-5000-64283 (September 2015) at 56, online:<nrel.gov/docs/fy15osti/64283.pdf>.
9. Ibid at 59.
10. See Equinor AS, “Industrialising floating offshore wind” (last accessed 10 February 2021), online: <equinor.com/en/what-we-do/floating-wind.html>.
11. Carbon Trust, “Floating Offshore Wind: Market Technology and Review” (June 2015), online (pdf ): <prod-drupal-files.storage.googleapis.com/documents/resource/public/Floating%20Offshore%20Wind%20Market%20Technology%20Review%20-%20REPORT.pdf>.
12. Aldo Chircop & Peter L’Esperance, “Functional Interactions and Maritime Regulation: The Mutual Accommodation of Offshore Wind Farms and International Navigation and Shipping” in A. Chircop, S. Coffen-Smout & M. L. McConnell, eds, Ocean Yearbook 30, eds A. Chircop et al. (Leiden, Boston: Brill, 2016); International Energy Agency, “Renewables: Wind Energy”, online: <web.archive.org/web/20170501051252/http://www.iea.org/topics/renewables/subtopics/wind/>.
13. Energy Market Analysis, supra note 7 at 25.
14. As of 2017, Beothuk Energy Inc. had proposed offshore wind farms totalling 3,200 MW at sites in waters off PEI, NS, NL and NB, while NaiKun Wind Development Inc., had proposed a 400 MW farm in Hecate Strait, BC: see Energy Market Analysis, supra note 7 at 25.
15. Energy Market Analysis, supra note 7 at 24; Marine Renewables Canada, “Clean, Blue Energy: Powering Canada’s Economy with Marine Renewable Energy” (June 2021) at 2, 5, online (pdf ): <marinerenewables.ca/wp-content/uploads/2021/06/MRC-Blue-Economy-Strategy-Submission-FINAL-1.pdf> (“Blue Energy”).
16. One Nova Scotia Coalition, “We Choose Now: A Playbook for Nova Scotians” (2015) at 72, online (pdf ): <static1.squarespace.com/static/560e8359e4b015462b7d4b37/t/5638d589e4b0ce96e22646ad/1446565257252/15-43356+We+Choose+Now+FOR+WEB+Nov+2.pdf>.
17. Paul Withers, “Nova Scotia Power to pull plug on tidal station, seeks $25M from ratepayers”, CBC (23 February 2021), online: <www.cbc.ca/news/canada/nova-scotia/nova-scotia-power-annapolis-generating-station-1.5924509>.
18. FORCE is a non-profit research facility that acts as “host to turbine developers, providing a permitted site, electrical infrastructure, an observation facility, and connection to the power grid.” See FORCE, “About Us”, online: <fundyforce.ca/about-us>.
19. Blue Energy, supra note 15 at 12.
20. Blue Energy, supra note 15 at 5.
21. Marine Renewables Canada, “Facts: Wave Energy” (last visited 10 February 2022), online: <marinerenewables.ca/facts/wave-energy/>.
22. Ibid.
23. La Forest, supra note 2 at 17.
24. We commend the reader to the thorough review provided in Tidal Energy supra note 3.
25. Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, Appendix II, No 5.
26. Reference Re: Offshore Mineral Rights (British Columbia) [1967] SCR 792, 65 DLR (2d) 353 (“BC Offshore Reference”); Reference re Newfoundland Continental Shelf, [1984] 1 SCR 86, 5 DLR (4^th) 385 (“Hibernia Reference”).
27. Constitution Act, 1867, supra note 25, ss 91(9), (10), (12), (13).
28. Ibid, s 91(29).
29. Ibid, s 92(10)(a).
30. Ibid, ss 91(29), 92(10)(a).
31. See generally BC Offshore Reference and Hibernia Reference, supra note 26.
32. H Kindred et al, eds, International Law: Chiefly as Interpreted and Applied in Canada, 7^th ed (Toronto: Emond Montgomery Publications Limited, 2006) at 38–43; BC Offshore Reference, supra note 26; Hibernia Reference, supra note 26.
33. Hibernia Reference, supra note 26; Tidal Energy, supra note 3 at 34–45; Ocean Economy, supra note 3 at 23–26, 30-31.
34. Oceans Act, SC 1996, c 31, s 8(1).
35. Ibid, ss 15(1), 19(1).
36. SOR/2019-285, Schedule – Physical Activities, ss 42–45.
37. CERA, supra note 5, s 2, “offshore area”.
38. SC 2019, c 28, s 1 (“IAA”).
39. See discussion in Tidal Energy, supra note 3 at 49–53.
40. RSC 1985, c N-22.
41. SC 2001, c 26.
42. RSC 1985, c F-14.
43. SC 2002, c 29.
44. SC 1994, c 22.
45. SC 1999, c 33.
46. Constitution Act, 1867, supra note 25 at ss 92(5), (10), (13), (16).
47. Constitution Act, 1867, supra note 25 at ss 92A(1)(c).
48. Peter Hogg, Constitutional Law of Canada, 2006 Student Ed (Toronto: Thomson Carswell, 2006) at 318.
49. Tidal Energy, supra note 3 at 34–45.
50. See Reference re: Ownership of the Bed of the Strait of Georgia and Related Areas, [1984] 1 SCR. 388 at 400, 8 DLR (4^th) 161 (“Straits Reference”), citing R. v Keyn (1876), 2 Ex. D. 63.
51. Hogg, supra note 48 at 319; Straits Reference, supra note 50 at 396; La Forest, supra note 2 at 464.
52. See Constitution Act, 1867, supra note 25 at s 7 (in respect of NB and NS) and s 109 with respect to NL, see the Newfoundland Act (British North America Act, 1949) 12-13 Geo. VI, c 22 (U.K.), reprinted in RSC 1985, App II, No 32, Schedule I Terms of Union, s 2 and s 37 (which are analogous to ss. 7 and 109 of the Constitution Act, 1867). With respect to PEI, see Prince Edward Island Terms of Union (UK), 1873, reprinted in RSC 1985, App II, No 12.
53. Tidal Energy, supra note 3 at 37.
54. Tidal Energy, supra note 3 at 39–41; La Forest, supra note 2 at 464.
55. The Nova Scotia Offshore Area, as defined in the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, SC 1988, c 28, s 2 “offshore area” and Schedule I, and Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation (Nova Scotia) Act, SNS 1987, c 3 (together, the “NS Accord Acts”) at ss 2(r) and Schedule I, encompasses Nova Scotia’s claimed portion of the Bay of Fundy. However, those acts were the result of political compromise between NS and Canada, and both acts (at s 3) expressly provide that the acts shall not be interpreted as providing a basis for any claim by or on behalf of the other government for any interest in or jurisdiction over any offshore area or any living or non-living resources therein.
56. Canadian Energy Regulator, “Canada’s Renewable Power – New Brunswick” (last modified 16 April 2021), online (pdf ): <cer-rec.gc.ca/en/data-analysis/energy-commodities/electricity/report/canadas-renewable-power/canadas-renewable-power/provinces/renewable-power-canada-new-brunswick.html>.
57. SNB 2013, c 7.
58. New Brunswick, Department of Natural Resources, Allocation of Crown Lands for Tidal In-Stream Energy Conversion Projects, Policy Number CLM-022-2009 (Fredericton: Department of Natural Resources, 1 June 2011), online (pdf ): <www2.gnb.ca/content/dam/gnb/Departments/nr-rn/pdf/en/Publications/CLM0222009.pdf>.
59. Ibid, s 1.6.
60. New Brunswick, Department of Natural Resources, Allocation of Crown Lands for Wind Power Projects, Policy Number CLM 017 2005 (Fredericton: Department of Natural Resources, 7 February 2012) at s 5.2, online (pdf ): <www2.gnb.ca/content/dam/gnb/Departments/nr-rn/pdf/en/Publications/CLM0172005.pdf>.
61. New Brunswick, Department of Natural Resources, Submerged Crown Lands Policy, Policy Number CLM 014 2004 (Fredericton: Department of Natural Resources, 12 May 2014) at s 4.1.2, online (pdf ): <www2.gnb.ca/content/dam/gnb/Departments/nr-rn/pdf/en/Publications/CLM0142004.pdf>.
62. Canadian Energy Regulator, “Canada’s Renewable Power – Newfoundland and Labrador” (last modified 19 March 2021), online: <cer-rec.gc.ca/en/data-analysis/energy-commodities/electricity/report/canadas-renewable-power/canadas-renewable-power/provinces/renewable-power-canada-newfoundland-labrador.html>.
63. SNL 1994, c E-5.1.
64. Newfoundland and Labrador, Department of Industry, Energy and Technology,, “Maximizing Our Renewable Future: A Plan for Development of the Renewable Energy Industry in Newfoundland and Labrador” (December 2021), online (pdf ): <www.gov.nl.ca/iet/files/Renewable-Energy-Plan-Final.pdf>.
65. Ibid at 14.
66. Ibid at 25-26.
67. Ibid at 19.
68. Energy Research & Innovation Newfoundland & Labrador, “Projects: Evaluation of Floating Wind Technology”, online: <energyresearchinnovation.ca/projects/>.
69. Canadian Energy Regulator, “Canada’s Renewable Power – Prince Edward Island” (last modified 19 March 2021), online: <cer-rec.gc.ca/en/data-analysis/energy-commodities/electricity/report/canadas-renewable-power/canadas-renewable-power/provinces/renewable-power-canada-prince-edward-island.html>.
70. RSPEI 1988, c E-4.
71. RSPEI 1988, c R-12.1.
72. Government of Prince Edward Island, “Provincial Energy Strategy 2016/2017” (August 2016), online (pdf ): <princeedwardisland.ca/sites/default/files/publications/pei_energystrategymarch_2017_web.pdf>.
73. Ibid at 31.
74. Ibid at 27–30.
75. The sole reference to “off-shore wind” in the strategy is as an example of one of the “increasingly expensive renewable energy resources” that the New England market may have to rely on to meet state renewable portfolio standards. See ibid at 29.
76. Nova Scotia, Department of Energy, “Marine Renewable Energy Strategy” (Halifax: Department of Energy, May 2012) at 2, online (pdf ): <energy.novascotia.ca/sites/default/files/Nova-Scotia-Marine-Renewable-Energy-Strategy-May-2012.pdf>.
77. Marine Renewable-energy Act, SNS 2015, c 32 (the “NS MRA”).
78. Among others, NRCan, Environment Canada, Fisheries and Oceans Canada, Canadian Environmental Assessment Agency (now the Impact Assessment Agency), Transport Canada, NS Environment, NS Labour, NS Energy, NS Fisheries and Aquaculture, and the NS Department of Natural Resources. See Nova Scotia, Department of Energy and Department of Natural Resources, “Guidelines for Permitting of a Pre-Commercial Demonstration Phase for Offshore Renewable Energy Devices (Marine Renewables) in Nova Scotia” (August 2012) at 4, online (pdf ): <energy.novascotia.ca/sites/default/files/Final-Guidelines-for-Permitting-Demonstration-Phase.pdf>.
79. Renewable Electricity Regulations, NS Reg 155/2010 made under the Electricity Act, SNS 2004, c 25, ss 3(1), 22.
80. NS MRA, supra note 77, s 3(1)(n)(i) “marine renewable-energy resources”.
81. Ibid, s 12.
82. Ibid, s 10(1).
83. Ibid, ss 13-16.
84. Ibid, ss 13(2), 14(2), 15(2) and 16(2).
85. Ibid, ss 13(4)(b), 14(4)(b), 15(4)(b), 16(4)(b) and 70(1)(b).
86. Ibid, ss 36(a)-(b).
87. Ibid, s 35(7).
88. Ibid, ss 10(1)(b), Schedule B.
89. See supra note 55.
90. CERA, supra note 5, s 2.
91. Ibid, s 2 “offshore renewable energy project”.
92. Ibid, s 2 “offshore power line”.
93. Ibid, s 2.
94. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994; ratified by Canada 7 November 2003) (“UNCLOS”) at art 56(1)(a).
95. Canada, Foreign Affairs, Trade and Development Canada, Partial Submission of Canada to the Commission on the Limits of the Continental Shelf regarding its continental shelf in the Atlantic Ocean: Part I – Executive Summary, Catalogue No FR5-82/1-2013E (Ottawa: Foreign Affairs, 2013), online (pdf ): <www.un.org/depts/los/clcs_new/submissions_files/can70_13/es_can_en.pdf>.
96. UNCLOS, supra note 94, art 77(1).
97. Ibid, art 77(4).
98. Ibid, art 78(1).
99. Ibid, art 82(1).
100. CERA, supra note 5, s 2 “offshore area”.
101. NS Accord Acts, supra note 55.
102. Canada-Newfoundland and Labrador Accord Atlantic Accord Implementation Act, SC 1987, c 3; Canada-Newfoundland and Labrador Accord Atlantic Accord Implementation Newfoundland and Labrador Act, RSNL1990, c C-2 (together, the “NL Accord Acts” and, with the NS Accord Acts, the “Accord Acts”).
103. CERA, supra note 5, s 297(a).
104. Ibid, s 297 (b).
105. Ibid, s 298(1).
106. Ibid, s 298(2).
107. Ibid, ss 298(3)(a)-(g).
108. CERA, supra note 5, ss 299(b)-(c).
109. Ibid, ss 298(4)-(8), (11). Section 42(1) gives the Lead Commissioner certain powers over commissioners if the Lead Commissioner is satisfied that certain time limits imposed under the Act will not be met. However, the time limits in Part 5 are not among those enumerated in s 42(1).
110. IAA, supra note 38.
111. CERA supra note 5, s 299(a).
112. Ibid, s 298(9).
113. Ibid, s 298(9).
114. Shawn Denstedt & R J. Thrasher, “The Accord Acts Twenty Years Later” (2007) 30:2 Dal LJ 287.
115. CERA supra note 5 at s 300.
116. Ibid, s 301.
117. Ibid, s 296(1) “debris”.
118. Ibid, ss 302(1), (8).
119. Ibid, s 302(1).
120. Ibid, s 302(1)(a).
121. Ibid, s 302(2).
122. Ibid, s 302(1)(b).
123. RSC 1985, c. A-12.
124. CERA, supra note 5, s 302(3).
125. Ibid, s 302(5).
126. Ibid, s 302(4).
127. Ibid, s 303.
128. Ibid, s 304.
129. Ibid, ss 303(3), 304(2).
130. Ibid, s 308.
131. Ibid, s 181.
132. Ibid, s 305.
133. Ibid, s 306(1) & Part 6.
134. Ibid, s 299.
135. Supra note 36.
136. IAA, supra note 38, s 43(b).
137. Ibid, s 299; CERA, supra note 5, s 299(b).
138. CERA, supra note 5, s 298(3).
139. Ibid, s 3.
140. Ibid, s 56(1)-(2).
141. Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 35.
142. CERA, supra note 5, s 14(2).
143. Ibid, s 57(1).
144. Ibid, s 298(3).
145. Ibid, s 2.
146. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
147. R. v Desautels, 2021 SCC 17 at para 22.
148. CERA, supra note 5 at s 312.
149. Ibid, s 298(2).
150. Ibid, s 298(9).
151. Ibid, ss 304(3)-(4).
152. ORER Website, supra note 6.
153. Natural Resources Canada, Discussion Paper: Canada’s Approach to Offshore Renewable Energy Regulations, Catalogue No M134-64/2020E-PDF (Ottawa: Natural Resources, 2020), online: <rncanengagenrcan.ca/sites/default/files/pictures/participate/orer-paper-accessible-pdf-fip-wm-en.pdf> (“Discussion Paper”).
154. Natural Resources Canada, “Phase One Engagement Summary: Natural Resources Canada’s Offshore Renewable Energy Regulations Initiative” (2021), online (pdf ): <rncanengagenrcan.ca/sites/default/files/pictures/home/orer_-_summary_paper_-_en_-_acc.pdf> (“Engagement Summary Paper”).
155. Natural Resources Canada, “Offshore Renewable Energy Regulations: Proposed Technical Requirements” (2021), online (pdf ): <rncanengagenrcan.ca/sites/default/files/pictures/home/orer_-_technical_requirements_paper_-_en.pdf> (“Technical Paper”).
156. ORER Website, supra note 6.
157. Ibid.
158. Technical Paper, supra note 155 at 6.
159. Ibid at 10–17.
160. Ibid at 18–24.
161. Ibid at 25–38.
162. Ibid at 39–46.
163. Ibid at 47–53.
164. CERA, supra note 5, s 303(1).
165. Ibid, s 303(1).
166. Ibid, ss 304(3)-(4).
167. Federal Real Property and Federal Immovables Act, SC 1991, c 50, s 4 (“FRPFI Act”).
168. Engagement Summary Paper, supra note 154 at 4.
169. Discussion Paper, supra note 153 at 3.
170. FRPRI Act, supra note 166, s 2 “federal real property”.
171. Ibid, s 2 “real property”.
172. Oceans Act, supra note 34, s 7.
173. Federal Real Property and Federal Immovables Regulations, SOR/92-502.
174. Discussion Paper, supra note 153 at 3.
175. See Robert O. Fournier, “Marine Renewable Energy Legislation: A Consultative Process” (18 July 2011) at 50–52, online (pdf ): <oera.ca/sites/default/files/2019-05/Marine%20Renewable%20Energy%20Legislation%20%E2%80%93%20Report.pdf> (“Fournier”).
176. Accord Acts, supra notes 55, 102, at Part II, Division II. The issuance of interests by the respective boards is a “fundamental decision” and thus subject to ministerial intervention: see NS Accord Acts, supra note 55, ss 32–35, 60(2); NL Accord Acts, supra note 102, ss 31–40, 57(2).
177. Tidal Energy, supra note 3 at 68–69.
178. See supra note 55.
179. Ocean Economy, supra note 3 at 34–37, 45; IAA Atlantic Canada, supra note 3 at 47. For a description of proponent perception of the ORE regulatory “swamp”, see Fournier, supra note 175 at 50–52.
180. Ocean Economy, supra note 3 at 34.
181. Ibid at 35–36.
182. Discussion Paper, supra note 153 at 4.
183. NL Accord Act, supra note 102, ss 97–100; NS Accord Act, supra note 55, ss 99–100.
184. NL Accord Act, supra note 102, s 45; NS Accord Act, supra note 55, s 45.
185. NL Accord Act, supra note 102, s 45(1); NS Accord Act, supra note 55, s 45(1).
186. NL Accord Act, supra note 102, ss 45(2), 138.3; NS Accord Act, supra note 55, ss 45(2), 142.3.
187. NL Accord Act, supra note 102, s 45(3); NS Accord Act, supra note 55, s 45(3).
188. Ocean Economy, supra note 3 at 41.
189. Blue Energy, supra note 15 at 8.
190. Laurentian Channel Marine Protected Area Regulations, SOR/2019-105.
191. Banc-des-Américains Marine Protected Area Regulations, SOR/2019-50.
192. Order Designating the Tuvaijuittuq Marine Protected Area, SOR/2019-282.
193. St. Anns Bank Marine Protected Area Regulations, SOR/2017-106.
194. Blue Energy, supra note 15 at 20.
195. Tidal Energy, supra note 3 at 70.
196. See for instance the IAA, supra note 38, ss 92 (in respect of regional assessments in entirely federal lands), 93 (in respect of regional assessment in other regions), and 95 (in respect of strategic assessments).
197. Meinhard Doelle, “Regional & Strategic Assessments in the Proposed Federal Impact Assessment Act (IAA)” (February 25, 2018) in Environmental Law News: Climate Change, EA, Regulation, Governance, online (blog): <blogs.dal.ca/melaw/2018/02/25/regional-strategic-assessments-in-the-proposed-canadian-impact-assessment-act-ciaa/>.
198. Oceans Act, supra note 34 at 31.
199. Canada, Department of Fisheries and Oceans, Canada’s Ocean Strategy: Policy and Operational Framework for Integrated Management of Estuarine, Coastal And Marine Environments In Canada, Catalogue No Fs77-2/2002E-IN (Ottawa: Fisheries and Oceans Canada, 2002) at ii, online (pdf ): <waves-vagues.dfo-mpo.gc.ca/Library/264678.pdf>.
200. Ibid at 7.
201. Canada, Department of Fisheries and Oceans, Maritimes Region, Regional Oceans Plan – Scotian Shelf, Atlantic Coast, Bay Of Fundy: Background and Program Description, Catalogue No Fs104-32/1-2014E-PDF (Dartmouth: Fisheries and Oceans Canada, 2014) at 5, online (pdf ): <waves-vagues.dfo-mpo.gc.ca/Library/365205.pdf>.
202. Ibid at 13–16.
203. Ibid at 18–19.
204. Canada, Department of Fisheries and Oceans, Gulf Region, Gulf of St. Lawrence Integrated Management Plan, Catalogue No Fs149-7/2013E-PDF (Moncton: Fisheries and Oceans Canada, 2013), online: <waves-vagues.dfo-mpo.gc.ca/Library/356406.pdf>.
205. Fisheries and Oceans Canada, “Placentia Bay/Grand Banks Large Ocean Management Area Integrated Management Plan (2012-2017)” (February 2012), online (pdf ): <waves-vagues.dfo-mpo.gc.ca/Library/347923.pdf>.