Guidance on submitting required information for an excluded physical activity: Regulations Respecting Excluded Physical Activities (Newfoundland and Labrador Offshore Exploratory Wells)

May 9, 2023

Contents

• Background
• Excluded physical activities
• Information to be provided
  • Public disclosure
  • How to submit required documents and data files
• Posting of the submitted information
• Prohibitions

Background

In consideration of the Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador, the Minister of Environment and Climate Change has issued the Regulations Respecting Excluded Physical Activities (Newfoundland and Labrador Offshore Exploratory Wells) (the Regulations).

The Regulations set out the area of application and conditions by which an offshore exploratory well (as described in section 34 of the Physical Activities Regulations) would be excluded from the impact assessment process under the Impact Assessment Act (IAA). The project remains subject to the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and the proponent must follow the authorization process set out by the Canada-Newfoundland and Labrador Offshore Petroleum Board (C-NLOPB).

Under the Regulations, the proponent must provide the Impact Assessment Agency of Canada (the Agency) with information about the physical activity at least 90 days before commencing the drilling program. The proponent should submit the required information before seeking any authorizations from the C-NLOPB.

Excluded physical activities

Offshore exploratory wells in the first drilling program, which would be designated under section 34 of the Schedule to the Physical Activities Regulations, are not considered a ‘designated project’, as per section 112.1 of the IAA, if they meet all of the following requirements:

• the physical activity takes place in an area that is set out in one or more exploration licences issued in accordance with the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and within the area of application described in Schedule 1 of the Regulations;
• the proponent provides the information required under section 3 of the Regulations; and,
• the proponent satisfies the conditions set out in Schedule 2 of the Regulations.

These projects are therefore excluded from the impact assessment process under the IAA and are considered ‘excluded physical activities’. It is the responsibility of the proponent to determine if its project meets the regulatory requirements to be an excluded physical activity. The project remains subject to regulation by the C-NLOPB and may be subject to other applicable acts and regulations.

The C-NLOPB is responsible for verifying a project’s compliance with the conditions set out in Schedule 2 of the Regulations, under an agreement with the Agency. The C-NLOPB will not issue an authorization until the proponent has provided the required information to the Agency and has demonstrated compliance with all pre-drilling conditions. Applicable conditions will be included in the Operations Authorization making them enforceable under the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act. If an excluded physical activity were to fall out of compliance after the drilling program commences, the C-NLOPB would lead on enforcement, in discussion with the Agency. If the project cannot be brought back into compliance with the Regulations, the project would no longer be an excluded physical activity and may become subject to the provisions of the IAA.

Information to be provided

The proponent should provide the information required by section 3 of the Regulations to the Agency prior to applying to the C-NLOPB for an authorization and at least 90 days before commencing the drilling program. The required information gives notice to the Agency, C-NLOPB, federal authorities, Indigenous groups and the public that the proponent is proposing a project that will meet the conditions set out in the Regulations and will not, therefore, be subject to an impact assessment. The proponent should view this as an opportunity to provide Indigenous groups and other participants involved during the C-NLOPB authorization process with sufficient information to clearly understand the proposed project. The level of detail should be similar to that which would be provided in an Initial Project Description were the project to be assessed under the IAA.

Proponents must provide written notice to the Agency through the Proponent Portal that includes the following information (as detailed in section 3 of the Regulations):

1. the proponent’s name and contact information and the address of the internet site on which the information referred to in section 40 of Schedule 2 of the Regulations will be published;
2. a description of the activity;
3. the licence number of any exploration licence respecting the area in which the proponent proposes to carry out the activity;
4. a summary of all engagement that the proponent undertook with the Indigenous groups referred to in section 1 of Schedule 2, including the issues raised and how views and issues raised have been considered, and any future engagement that is planned;
5. the geographic coordinates of the area in which the activity would take place within the area described in Schedule 1 and the geographic coordinates identifying the area set out in any exploration licence;*
6. the number of wells that are planned to be drilled and the planned depth of each well;
7. a list of all activities that are associated with the drilling, testing and abandonment and all infrastructure, structures and physical works that are necessary for those activities;
8. a site map that illustrates the location of the elements referred to in paragraph (g) and the distance between them;
9. a description of the processes that will be used to drill, test and abandon wells;
10. a list of any financial support received from federal authorities in relation to the activity and of any such support for which an application has been made;
11. a list of the permits, licences or other authorizations that may be required by jurisdictions that have powers, duties or functions in relation to an assessment of the activity’s environmental effects; and
12. if the activity is proposed in an area that is closed in accordance with the Conservation and Enforcement Measures adopted by the Northwest Atlantic Fisheries Organization, a copy of any mitigation measures that were proposed to the Department of Fisheries and Oceans.**

* For item (e), “the area in which the activity would take place within the area described in Schedule 1” can be shown with a simple polygon which encompasses the relevant exploration licences.

** The proponent should contact the Department of Fisheries and Oceans before submitting the required information to determine what information is required for item (l).

Any information submitted by a proponent must:

• be in a machine-readable format; and
• include a plain-language summary of the information in English and in French.

Machine readable means that a user can search for text within the document, can copy structured text, images, document information, and is not password protected. For ease of transmission and dissemination, the Agency prefers that proponents submit the required information as Portable Document Format (PDF) files that are machine readable.

Site maps that illustrate the location of the elements and the distance between them (as required in Section 3(h) of the Regulations) are also to be provided to the Agency as electronic geospatial data file(s) compliant with the ISO 19115 standard for metadata. For more information on how to submit geospatial data, consult the Guidance on submitting geospatial data.

Public disclosure

Information received from a proponent will be made public through the Canadian Impact Assessment Registry. If the confidentiality of any information is an issue, the proponent must contact the Agency prior to making any submission.

The Government of Canada accepts no liability whatsoever for any claim that might in any way arise as a consequence of the Government of Canada’s handling, use, publication or release of the document or the information contained therein, either in whole or in part. Proponents must ensure that the document is accurate and that nothing contained in the document is subject to any confidentiality requirements. Proponents are not to provide confidential, personal or proprietary information in the documents and must ensure that the documents can be disclosed to the public in their entirety.

It is an offense under paragraph 144(1)(a) of the IAA to make false or misleading statements or to provide misleading information to the Agency or any person who is exercising their powers or performing their duties or functions under the IAA. Proponents must ensure that the documents, associated data files, and any additional information provided are accurate and do not contain false or misleading information. Fines can range from $5,000 to $300,000 for individuals, and $25,000 to $8,000,000 for corporations or entities.

How to submit required documents and data files

To submit the documents and data files described in this Guide use the Impact Assessment Agency’s Proponent Portal.

For more information on how to submit geospatial data, consult the Guidance on submitting geospatial data.

For alternate means of submitting the required documents and files or for other enquiries, send an e-mail to the Agency at iaac.project-projet.aeic@iaac-aeic.gc.ca or call 1-866-582-1884.

Posting of the information

Once the proponent submits the required information, the Agency will determine whether the information provided meets the requirements set out in section 3 of the Regulations. Within 10 calendar days after receiving the required information, the Agency will determine whether the document is complete. If required information is missing, the Agency will notify the proponent and request that a revised document be submitted.

When the Agency confirms that all elements of the required information have been provided, the proponent will be notified and the information will be made publicly available on the Canadian Impact Assessment Registry, where the project will be listed as an excluded physical activity. The Agency will also notify the C-NLOPB and relevant federal authorities.

Once the required information is posted by the Agency, the project is considered an excluded physical activity, and remains so as long as it satisfies the conditions in the Regulations.

Prohibitions

Proponents are prohibited from doing any act or thing in connection with the carrying out of a designated project, in whole or in part, if that act or thing may cause an effect under subsection 7(1) of the IAA.

This does not apply once the Agency has verified that the proponent has provided all the required information under section 3 of the Regulations, and if the physical activity is within the area of application described in Schedule 1 and the proponent satisfies the conditions set out in Schedule 2.