How are offshore petroleum resources managed? Two Acts, the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act (the Accord Acts), created a federal-provincial cooperative regime for the management of offshore petroleum resources. Under the Accord Acts, the Canada–Newfoundland Offshore Petroleum Board and the Canada–Nova Scotia Offshore Petroleum Board (the Boards) were established. The Boards have mandates, among others, to manage and conserve petroleum resources and issue licences for the development of offshore petroleum activities under the Accord Acts. But the Accord Acts do not include the management of offshore renewable energy. A new bill, C-49, will expand the Accord Acts and the Boards’ mandates to include the management of offshore renewable energy as well.
But the new bill, Bill C-49, has limited room to regulate the environmental impacts of Offshore Wind Energy (OWE). For example, there are offshore-onshore interactions from laying cables and connecting of OWE facilities to onshore storage and transmission facilities. Effects from OWE projects might also combine with the effects of other offshore activities, known as cumulative effects. The cumulative and other effects of projects are generally recognized in the Impact Assessment Act, 2019. The complexity of jurisdiction over environmental impacts is also discussed in the Supreme Court of Canada’s Reference Re Impact Assessment Act, 2023, in general terms. These issues are important. Bill C-49 must clarify the jurisdiction and decision-making processes over environmental impacts and cumulative effects.
Another problem with Bill C-49 is that it does not offer effective grounds to respond to environmental impacts. The Governor in Council has a limited discretion to make regulations on “prohibiting the introduction into the environment of substances, classes of substances and forms of energy, in prescribed circumstances”. This limited discretion needs to be expanded to provide for timely regulations on the environmental effects of OWE and other types of renewable energy. Other provisions of Bill C-49 are reactive responses to environmental issues. For example, Bill C-49 allows the prohibition of project owners from commencing or continuing any work or activity on all or portion of the offshore area after “an environmental or social problem of a serious nature” occurs. Preventive and developed regulatory mechanisms by expanding room for regulations should be also stated in Bill C-49 to provide adequate regulatory actions.
Moreover, Bill C-49 is not clear on types and procedures of impact assessments. On one level, Bill C-49 refers to the Impact Assessment Act, which creates a basis for assessing the environmental impacts of OWE projects together with other impacts. But there are references which seem to grant permission to the Boards to conduct separate assessments. So long as Bill C-49 does not add clarification about such assessments, there appear to be two possibilities for assessments. Under such uncertain provisions, while some assessments fall under the Impacts Assessment Act, containing some arrangements, there is a permission for separate or additional assessments, lacking transparent procedures.
Three final points also need to be mentioned: 1) Guidelines, which are mentioned in the Bill C-49, are not considered binding while regulations, which are passed through a legal procedure, are binding. Hence, regulations are more effective legal tools; 2) Memoranda of understanding for coordination among various levels of authorities have general contents and fail to provide details on how projects are planned in marine areas and get regulatory approvals. Operational tools such as marine integrated planning and marine spatial planning should be applied to integrate OWE into the management of all activities in the marine environment; 3) Operationalization of Bill C-49 for licensing OWE projects requires consideration and application of a myriad of laws and regulations and their approval processes. These laws and regulations, which will be partly discussed in my next blog posts, need to be reviewed and amended, where necessary, for ensuring an adequate regulatory regime.
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