Nova Scotia’s offshore renewable energy sector should benefit from new legislation designed to fast-track developments and to create opportunities for smaller scale, innovative technologies.
The Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act (Nova Scotia) and the Marine Renewable Energy Act (Nova Scotia) are being amended to streamline regulatory processes in the expectation that faster growth can be achieved in the Province’s renewable energy sector. At the time of this article’s publication, the legislation titled Advancing Nova Scotia Opportunities Act – Bill 471 was referred to the Committee of the Whole House without amendments and is making its way through the legislative process in quick time.
As the lengthy title suggests, the Act has been renamed to reflect its application to the offshore renewable energy sector. The renaming and the amendments mirror the federal government’s amendments in its Bill C-49, which expands the mandate of the Canada-Nova Scotia Offshore Petroleum Board (“CNSOPB”) and establishes a joint management regime to regulate offshore renewable energy. Here are key elements of the proposed legislation:
CNSOPB, has been aptly renamed. The new Canada-Nova Scotia Offshore Energy Regulator (“CNSOER”) will oversee not only traditional offshore petroleum activities but also offshore renewable energy projects and associated electrical infrastructure. This expanded mandate aims to centralize regulatory oversight and streamline the project approval process.
The proposed legislation now includes definitions for “offshore renewable energy project,” covering activities from the research and assessment of renewable energy resources to the production, storage, and transmission stages of renewable energy.
CNSOER can now issue submerged land licenses for offshore renewable energy projects, subject to specific conditions. These licenses are applicable to certain technologies or types of renewable energy resources, but do not apply to projects not requiring a facility to be attached to the seabed.
For Crown reserve lands, the Regulator must conduct a call for bids before issuing a submerged land license. This process includes publishing a notice detailing the terms and conditions, bid criteria, and selection process, to foster a competitive and transparent approach to licensing. The CNSOER can forgo the bidding process in certain circumstances, such as correcting administrative errors, exchanging licenses, or at the direction of the federal and provincial ministers.
Image: Unsplash/Nicholas Doherty
The Marine Renewable Energy Act (Nova Scotia) has also been updated to better support marine-based renewable energy projects, which includes offshore wind and tidal. These changes include allowing “Regional Assessments” for surveying purposes, the delegation of regulatory authority to other entities, and the ability to split existing licenses.
The requirement for a strategic environmental assessment (“SEA”) has been replaced with the use of Regional Assessments to designate Marine Renewable Energy Areas (“MREA”). This change accelerates the process of identifying suitable areas for marine-based energy projects, reducing the time and complexity of project planning making it easier to secure such locations. The Act now allows for the delegation of regulatory authority to entities like CNSOER. This change could allow Nova Scotia to identify parcels of lands for potential offshore wind projects pursuant to the ongoing regional assessment being undertaken and proceed with a licensing/bidding process for offshore wind under the MREA in the event passage of Bill C-49 is delayed or deferred for any reason.
Amendments enable the splitting of existing licenses issued under the Act into multiple licenses. This change is potentially aimed at facilitating the implementation of smaller, innovative projects and research & development initiatives, especially those crucial to the growth and stability of the tidal industry. The change is also a response to the challenges faced by the tidal energy industry over the last several years in obtaining regulatory authorizations from the DFO under the Fisheries Act (Canada) for larger multiple platform technologies. In view of the challenges faced by the industry, the Federal and Provincial Governments formed a multi-stakeholder task force in 2023 which released its final report in February 2024, containing recommendations for promoting Sustainable Tidal Energy Development in the Bay of Fundy. The changes being proposed to the MREA aim to align project rights of license holders with DFO’s authorization process, to address the challenges highlighted in the report.
The changes to the MREA and pursuing mirror provincial legislation through Bill C-49 in advance of the Federal legislation being passed, is a clear signal of intent and resolve by Nova Scotia to pursue Offshore Wind development on a fast-track basis.
The increased flexibility in licensing opens opportunities for smaller-scale projects and technological innovations. Proponents can now pursue niche projects and research in alignment with DFO’s administered regulatory process.
Bill 471 received Royal Assent on September 20, 2024. However, certain sections of the Bill are not yet in force as we wait for them to be proclaimed, including the amendments to the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation (Nova Scotia) Act. This is reflective of the fact that Bill C-49, the mirror federal legislation, is still making its way through Senate Committee meetings on its way to the third reading.
For any queries, please contact Mohammad Ali Raza, Guy Wellard, or Miguel deMello in the Halifax office of Cox & Palmer. This article was written with contributions by Blair Miller, an Articling Clerk at Cox & Palmer.
This article originally appeared on Law360 Canada’s website published by LexisNexis Canada Inc.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law 360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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