On October 3, 2024, new federal legislation (the Bill) was passed to enable the development of the offshore wind industry in Nova Scotia and Newfoundland and Labrador1.
The Bill establishes a joint management regulatory regime for offshore renewable energy development in Atlantic Canada. For the regime to function, the two provinces are required to pass mirror legislation in their respective provincial legislatures, which Nova Scotia has already done and the government of Newfoundland and Labrador is expected to do this fall. Once established, the regime will allow proponents of offshore wind projects to submit applications to the jointly managed federal and provincial offshore energy regulators as early as next year.
What you need to know
- The Bill modernizes and expands the mandates of two Atlantic offshore energy regulators, whichhave historically applied exclusively to offshore petroleum resources, to include offshore renewable energy. Additionally, the Bill limits the duration of petroleum discovery licenses and establishes new authorities to support the Government of Canada's marine conservation agenda.
- The Bill aligns the Atlantic offshore regime with the Impact Assessment Act, including by clarifying roles and responsibilities and exchange of information between regulatory bodies.
- Regulations supporting the Bill are forthcoming and are expected to include technical requirements that mirror the proposed Canada Offshore Renewable Energy Regulations enacted under the Canada Energy Regulator Act.
The modernized Atlantic offshore energy regulators
The Bill amends the two Atlantic Accord Acts—the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act (collectively, the Accord Acts)—which have historically applied exclusively to offshore petroleum resources, to include offshore renewable energy. As a result, the Canada-Nova Scotia Offshore Petroleum Board's name will change to the Canada-Nova Scotia Offshore Energy Regulator (CNSOER) and the Canada-Newfoundland and Labrador Offshore Petroleum Board's name will change to the Canada-Newfoundland and Labrador Offshore Energy Regulator (CNLOER) (collectively, the Regulators).
The CNSOER and the CNLOER's mandates will, going forward, continue to apply to offshore petroleum resources and be expanded to include offshore renewable energy projects, including offshore wind projects. This approach of having a single regulator for all offshore energy development is followed in countries such as the UK, the U.S., Australia and Norway, and is familiar to offshore wind project proponents in other jurisdictions.
In addition to expanding the Regulators' mandates, the Bill establishes new authorities to support the Government of Canada's marine conservation agenda. For example, the amendments provide authority for Ministers to jointly prohibit the commencement or continuation of oil and gas activities in an area that has been or may be identified as an area for environmental or wildlife conservation or protection. Finally, the amendments modernize the Accord Acts' land tenure regime for offshore petroleum development, including by limiting the duration of significant discovery licenses to 25 years, which previously had an indefinite term, to reflect international practices.
Alignment with the Impact Assessment Act
In past bulletins, we have written about recent developments under the federal Impact Assessment Act (IAA)regime, from the Supreme Court of Canada's finding the legislation unconstitutional and amendments intended to bring the IAA into constitutional compliance, to the Cabinet Directive on Regulatory and Permitting Efficiency for Clean Growth Projects and proposed changes to the Physical Activities Regulations, known as the 'Project List'.
This Bill improves alignment between the Accord Acts and the IAA by clarifying the roles and responsibilities of the Regulators and Impact Assessment Agency of Canada (the Agency) during the project review process. In 2023, the Agency began conducting regional assessments for offshore wind development in Nova Scotia and Newfoundland and Labrador, which inform the planning and management of cumulative effects of potential offshore wind development as well as future project impact assessments in these two provinces. In the context of a project review, the Bill clarifies that the Regulators must provide expert information or knowledge to the Agency upon its request and specify the steps of the impact assessment process where the Regulators will provide comments to the Agency.
Regulations are forthcoming
The next step, once the Province of Newfoundland and Labrador passes mirror legislation provincially, will be for the Government of Canada to establish new regulations for the regime's technical functioning.
The Government of Canada, via Natural Resources Canada, began consultations on its broader Offshore Renewables Energy Regulations Initiative in 2020 to develop modern safety and environmental protection regulations that will apply to site assessment, construction, operation and decommissioning and abandonment activities related to renewable energy projects and power lines in Canada's federal offshore areas. This has involved the publication of Proposed Technical Requirements2 and the proposed Canada Offshore Renewable Energy Regulations3 that are being repealed under the Canada Energy Regulator Act.
Natural Resources Canada has indicated it intends to replicate, to the extent possible, the proposed Canada Offshore Renewable Energy Regulations for this new regime in Atlantic Canada, and that the governments of Nova Scotia and Newfoundland and Labrador have been consulted throughout this regulatory development process4.
Footnotes
1. LegisInfo, Bill C-49, An Act to amend the Canada—Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and to make consequential amendments to other Acts(October 3, 2024).
2. Natural Resources Canada, Proposed Technical Requirements for the Offshore Renewable Energy Regulations (December 2021).
3. Canada Gazette, Part 1, Canada Offshore Renewable Energy Regulations (February 24, 2024).
4. Natural Resources Canada, Canada Offshore Renewable Energy Regulations (April 5, 2024).
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