Law:Hibernia Development Project Act

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S.c. 1990, c. 41

Assented to 1990-11-06

An Act respecting the Hibernia Development Project and to amend certain Acts in relation thereto

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:


Contents

Short Title

Short title

1. This Act may be cited as the Hibernia Development Project Act.


Interpretation

Definitions

2. (1) In this Act,

“Board”

« Office »

“Board” means the Canada-Newfoundland Offshore Petroleum Board established by the joint operation of section 9 of the Canada-Newfoundland Atlantic Accord Implementation Act and section 9 of The Canada-Newfoundland Atlantic Accord Implementation (Newfoundland) Act, chapter 37 of the Statutes of Newfoundland, 1986;

“continental shelf”

« plateau continental »

“continental shelf” means the seabed and subsoil of those submarine areas

(a) that extend beyond the territorial sea throughout the natural prolongation of the land territory of Canada to the outer edge of the continental margin or to a distance of two hundred nautical miles from the inner limits of the territorial sea, whichever is the greater,

(b) that extend to such outer limits as are prescribed pursuant to paragraph (2)(a), or

(c) that are designated as being part of the continental shelf pursuant to that paragraph;

“federal laws”

« lois fédérales »

“federal laws” includes Acts of Parliament, regulations as defined in section 2 of theInterpretation Act  and any other rules of law within the jurisdiction of Parliament, and any provision of those Acts, regulations or rules of law, but does not include ordinances within the meaning of theNorthwest Territories Act  or laws of the Legislature of Yukon or of the Legislature for Nunavut;

“Her Majesty”

« Sa Majesté »

“Her Majesty” means Her Majesty in right of Canada;

“Hibernia Development Project” or “Project”

« exploitation »

“Hibernia Development Project” or “Project” means the project described in the Hibernia Development Plan approved by the decision referred to in subsection 6(1), as amended and approved by the Board from time to time;

“laws of Newfoundland”

« lois terre-neuviennes »

“laws of Newfoundland” includes the laws and rules of law from time to time in force in the Province of Newfoundland, and any provision of those laws or rules of law, but does not include federal laws;

“Minister”

« ministre »

“Minister” means the Minister of Natural Resources;

“offshore area”

« zone extracôtière »

“offshore area”, with respect to the Province of Newfoundland, means

(a) any area of the sea that is not within the Province, that is on the landward side of the outer limits of the continental shelf and that is nearer to the coast of the Province than to the coast of any other province, or

(b) such other area of the sea as is designated pursuant to paragraph (2)(b),

and includes the seabed and subsoil thereof and the airspace above that area;

“prescribed”

Version anglaise seulement“prescribed” means prescribed by regulations;

“security interests”

« sûretés mobilières »

“security interests” means interests in chattels, fixtures, documents of title, instruments, securities, chattel papers or other personal property that secure payment or performance of an obligation, and includes choses in action and interests arising from an assignment of book debts;

“territorial sea”

« mer territoriale »

“territorial sea” means the territorial sea of Canada as determined in accordance with the Territorial Sea and Fishing Zones Act.

Regulations

(2) The Governor in Council may make regulations

(a) prescribing outer limits of the continental shelf or any portion thereof for the purpose of the definition �continental shelf” in subsection (1), or designating, for greater certainty, the seabed and subsoil of a particular submarine area as being part of the continental shelf;

(b) designating an area of the sea for the purpose of the definition “offshore area” in subsection (1); and

(c) prescribing, in respect of any area of the sea and for the purpose of the definition “offshore area” in subsection (1), the manner of determining the province that has the coast nearest to that area.

1990, c. 41, s. 2; 1994, c. 41, s. 37; 2002, c. 7, s. 178.

Previous Version

Agreements

Authority to enter into agreements

3. (1) The Minister may, with the approval of the Governor in Council, enter into one or more agreements on behalf of Her Majesty in respect of the Hibernia Development Project.

Contents of agreements

(2) The agreements entered into under this section may include

(a) undertakings for the provision of assistance by Canada, including

(i) the payment of a contribution in respect of the capital costs of the Project, in an amount not exceeding in the aggregate one billion forty million dollars,

(ii) the guaranteeing from time to time, in accordance with terms and conditions approved by the Minister of Finance, of the payment of amounts, not exceeding in the aggregate at any time one billion six hundred and sixty million dollars in respect of principal, payable under or pursuant to loans, notes, bills of exchange or other financial instruments or arrangements made, given or issued in relation to the financing or refinancing of the whole or a portion of the Project,

(iii) the provision of other assistance in an amount not exceeding in the aggregate three hundred million dollars,

(iv) the guaranteeing from time to time, in accordance with terms and conditions approved by the Minister of Finance, of the payment of amounts, not exceeding in the aggregate at any time one hundred and seventy-five million dollars, payable under or pursuant to loans, notes, bills of exchange or other financial instruments or arrangements made, given or issued in relation to the provision of a temporary financing facility,

(v) the guaranteeing of the payment of the redemption premiums, if any, payable under the loans, notes, bills of exchange or other financial instruments or arrangements referred to in subparagraph (ii), of the amounts, if any, payable under any interest rate swap contract entered into in respect of any such instrument or arrangement, and of the interest payable in respect of any such instrument or arrangement for one interest period of twelve months or less, and

(vi) the guaranteeing from time to time, in accordance with terms and conditions approved by the Minister of Finance, of the payment of interest payable in respect of amounts that become payable pursuant to guarantees of loans, notes, bills of exchange or other financial instruments or arrangements referred to in subparagraph (ii), or guarantees of redemption premiums, amounts or interest referred to in subparagraph (v), for periods not exceeding fifteen days from the dates those instruments, arrangements, redemption premiums, amounts or interest become due until they are paid;

(b) provisions for the appointment of one or more trustees or other persons to perform such duties as may be required by the Minister, including the signing, as agent of Her Majesty, of certificates that represent the right of the proper holders of the certificates to participate in, and to have the benefit of, a guarantee entered into by the Minister under subparagraph (2)(a)(ii), (iv), (v) or (vi), provided that the maximum amounts referred to therein are not exceeded, which signatures shall have the same effect as that of the Minister;

(c) provisions for the payment of a net profit interest to Her Majesty;

(d) undertakings in relation to industrial and employment benefits;

(e) undertakings in relation to access to domestic and international markets for oil produced from the Project, subject to compliance with any other Act of Parliament including the pan class="XRefExternaNational Energy Board Act and the Canada-Newfoundland Atlantic Accord Implementation Act and with any regulations thereunder, and access to international market prices for oil produced from the Project; and

(f) such other terms and conditions as the Minister considers desirable.

Currency of guarantee

(3) Subparagraphs (2)(a)(ii), (v) and (vi) shall be deemed to authorize the guaranteeing, in whole or in part, of an equivalent amount in the currency of any country other than Canada and, notwithstanding subsection 48(2) of the Financial Administration Act, the equivalent amount shall be calculated using

(a) where the guarantee is in respect of an amount that together with all guaranteed principal amounts outstanding at the time is in excess of the maximum aggregate principal amount guaranteed at any prior time, the rate of exchange between the Canadian dollar and the currency concerned as quoted by the Bank of Canada at noon on the day immediately preceding the day on which the benefit of the guarantee is extended by certificate pursuant to paragraph (2)(b) to the amount in excess; or

(b) where the guarantee is in respect of the payment of an amount that finances or refinances the whole or a portion of an obligation in the currency of a country other than Canada that has been previously guaranteed under any of those subparagraphs, the weighted average of the rates of exchange determined under paragraph (a) in respect of all of the amounts that were previously guaranteed in the currency concerned.

Definition of “interest”

(4) In this section, “interest” includes, in respect of a financial instrument, the difference between the face amount of the financial instrument and the sum received by the issuer, amortized over the term of the financial instrument to its maturity.

1990, c. 41, s. 3; 1999, c. 31, s. 130.

Authority to carry out agreements

4. (1) The Minister may do such things as are necessary to carry out any agreement entered into under section 3 or to protect the interests or enforce the rights of Her Majesty under the agreement.

Idem

(2) Without limiting the generality of subsection (1), the Minister may, with respect to an agreement entered into under section 3,

(a) issue guarantees on behalf of Her Majesty pursuant to and in accordance with any undertaking that is given in the agreement;

(b) accept and hold on behalf of Her Majesty any security granted to Her Majesty under or pursuant to the agreement, including any security granted in substitution therefor;

(c) release, or realize on, any security referred to in paragraph (b);

(d) acquire shares of a corporation on behalf of or in trust for Her Majesty; and

(e) acquire on behalf of Her Majesty the whole or any portion of the interest held in the Project by any party to the agreement, and for that purpose enter into such agreements or arrangements as the Minister considers appropriate.

Summary to be laid before Parliament

5. The Minister shall cause a summary of each agreement made under this Act to be laid before each House of Parliament as soon as practicable after the making of the agreement.


Validation

Validation of project approval

6. (1) For the purposes of the Canada-Newfoundland Atlantic Accord Implementation Act, the decision of the Board concerning the application for approval of the Hibernia Canada-Newfoundland Benefits Plan and the Hibernia Development Plan, which decision was published as Decision 86.01 and submitted to the Minister on June 18, 1986, shall be deemed to have been validly made by the Board pursuant to sections 45 and 139 of that Act and the conditions referred to in subsection 32(1) of that Act shall be deemed to have been satisfied in respect of that decision.

Presumption

(2) Nothing done by the Board or the Minister pursuant to or in furtherance of the decision referred to in subsection (1) shall be found to be invalid by reason only that the Board was not properly constituted at the time the decision was made or that any of the provisions of the Act referred to in subsection (1) were not in force at that time.


Application Of Federal And Provincial Laws

Application

Application of federal laws

7. (1) Subject to this section, prescribed federal laws in relation to banking, bills of exchange, promissory notes, interest, bankruptcy, insolvency or the regulation of trade and commerce apply in the offshore area, with such modifications, if any, as are prescribed.

Interpretation

(2) The federal laws referred to in subsection (1) shall be applied

(a) as if the offshore area formed part of the territory of Canada; and

(b) notwithstanding that by their terms the application of those federal laws is limited to Canada.

Regulations

(3) The Governor in Council may make regulations

(a) prescribing federal laws for the purposes of subsection (1);

(b) prescribing such modifications in the federal laws that apply in the offshore area pursuant to this section as the Governor in Council considers the circumstances of that application may require; and

(c) generally for carrying out the purposes and provisions of this section.

Application of provincial laws

8. (1) Subject to this section and to such modifications or additions, if any, as are prescribed, the laws of Newfoundland in relation to security interests, including laws in relation to the enforcement of any rights or obligations arising thereunder, apply in the offshore area.

Interpretation

(2) The laws of Newfoundland referred to in subsection (1) shall be applied

(a) as if the offshore area formed part of the territory of the Province of Newfoundland; and

(b) notwithstanding that by their terms the application of those laws is limited to the Province of Newfoundland or a particular area of that Province.

Sums due to province

(3) Any sum due to Her Majesty in right of the Province of Newfoundland under a law of Newfoundland that applies in the offshore area pursuant to this section belongs to Her Majesty in right of the Province of Newfoundland.

Regulations

(4) The Governor in Council may make regulations

(a) restricting the application of subsection (1) to such laws of Newfoundland as are specified in the regulations;

(b) excluding any laws of Newfoundland from the application of subsection (1);

(c) prescribing such modifications or additions to the laws of Newfoundland that apply in the offshore area pursuant to this section as the Governor in Council considers necessary; and

(d) generally for carrying out the purposes and provisions of this section.

Limitation

9. For greater certainty, the provisions of section 8 shall not be interpreted as providing a basis for any claim, by or on behalf of a province, in respect of any interest in or legislative jurisdiction over the offshore area or the living or non-living resources of the offshore area or as limiting the application of any federal law.


Jurisdiction of Courts

Jurisdiction of courts

10. (1) A court has jurisdiction in respect of any matter that arises in whole or in part in the offshore area and to which a law applies pursuant to this Act if the court would have had jurisdiction had the matter arisen in the Province of Newfoundland.

Orders and powers

(2) A court referred to in subsection (1) may make any order or exercise any power it considers necessary in respect of any matter referred to that subsection.

Saving

(3) Nothing in this section limits the jurisdiction that a court may exercise apart from this Act.

Definition of “court”

(4) In this section, “court” includes a judge thereof and any justice.


Saving

Saving

11. Nothing in sections 7 to 10 limits the operation that any Act, law or rule of law may have apart from this Act.


Inconsistent Laws

Inconsistent laws

11.1 In the event of any inconsistency between this Act or the regulations made under this Act and the Canadian Laws Offshore Application Act or the regulations made under that Act, this Act or the regulations made under this Act, as the case may be, prevail to the extent of the inconsistency.

1990, c. 41, s. 22.


Related Amendments

12. to 21. (Amendments)


Transitional

22. (Amendment)


Coming Into Force

Coming into force


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