What are our legal foundations
Comments and Suggestions
The CER welcomes feedback on the content of the Regulatory Framework at any time.
The left-hand side of the Regulatory Framework graphic shows the various tools we use to regulate. We use regulations, regulatory documents and guidance. Each is described in the tabs below.
Graphic Description
The CER Regulatory Framework is represented by a circle graphic. The center of the circle contains the word ‘Acts’ around which the circle works, as depicted by arrows. Acts are laws passed by Parliament that establish the CER’s mandate. We consider this to be the heart of the Regulatory Framework.
The left-hand side of the circle identifies our regulatory tools (from bottom to top: guidance, regulatory documents and regulations) with a band running through the tools with the words ‘Core Responsibilities’ – i.e., the means by which we execute our mandate.
Statutes or Acts
At the center of the Regulatory Framework is the Canadian Energy Regulator Act (CER Act). It is the statute (an act passed by Parliament) that created the Canada Energy Regulator (CER). The CER Act and the other acts listed below give us our powers and set out our responsibilities.
For example:
- Canada Oil and Gas Operations Act (COGOA)
- Canada Petroleum Resources Act (CPRA)
- Impact Assessment Act,
- Canada Labour Code (Part II)
Consult the complete list of acts that form part of the Regulatory Framework.
Regulations
Regulations are another type of laws and must be obeyed.
Unlike acts, regulations are not made by Parliament. Instead, they are made by authorized groups within government who are delegated by Parliament to make rules that support the mandate of a government department or agency like ours. Regulations are also known as subordinate legislation because they support or are connected to an act of Parliament. The CER and the Governor in Council (GIC) are mainly responsible for making and approving regulations that are connected to our mandate.
- Very generally, the GIC means the Governor General of Canada acting on the advice of Cabinet to make regulations. The GIC also has other responsibilities for the CER, such as approving certain decisions made by the Commission of the CER. This is discussed in the Energy Adjudication section of the Regulatory Framework.
Regulations often outline what is meant by certain words in an act or detail how certain sections of an act must be carried out. They also often include additional requirements that must be followed or standards that must be met in order to comply with an act. While regulations supplement acts of Parliament, they can never exceed the limits set out in the act that authorizes them.
For more information about the regulation-making process, please see the Cabinet Directive on Regulation.
See the complete list of our regulations.
Performance-Based Regulations vs Prescriptive Regulations
We use a mix of performance-based and prescriptive regulations.
When a regulation is prescriptive, it means a regulated company (or others who do certain activities) must follow the specific requirement exactly as written.
For example:
The Onshore Pipeline Regulations include a requirement for a company to appoint an accountable officer and notify the Regulator within 30 days after the appointment by submitting a signed statement.
When a regulation is performance-based, it functions differently. The requirement to do something is set out in the regulation, but there is flexibility in how the regulated company meets the requirement.
The goal of a performance-based regulation is for companies to strive to do better than a minimum requirement.
For example:
The Onshore Pipeline Regulations include requirements for companies to have a system in place for managing their construction activities, operations and abandonment activities.
The Onshore Pipeline Regulations define what that management system must look like – such as:
- it has to be clear;
- it has to have good documentation and be understood by employees, at all levels;
- it has to include across all areas of work and include every regulated activity done by the company; and
- it has to be proactive – able to anticipate issues and adjust course.
We define what the management system must include, such as work processes for things like dealing with possible hazards. That means a company must identify, analyze, control, prevent and reduce risks for hazards and communicate these things clearly. The requirement is performance-based because the company gets to implement the management system using the means that work best in its unique circumstances, to achieve the outcomes set out in the regulations.
A big part of managing our Regulatory Framework is making sure that the two types of regulations (prescriptive and performance-based) are working well to keep people safe and the environment protected.
Standards in Regulation
Sometimes, regulations refer to other materials that are created by third parties, such as technical standards published by the Canadian Standards Association (CSA). Our staff participates in many CSA committees to help shape standards that apply to our mandate. When a regulation incorporates technical standards by reference, it means that those standards must be followed because they form part of the law.
If parts of a technical standard incorporated by reference do not adequately meet our desired outcomes for safety, protection of the public and/or protection of the environment, we may impose additional or alternative requirements. Any deviations from a technical standard incorporated by reference will be clearly stated in our regulations, in orders or application approvals. If we determine a technical standard is not appropriate, we will not incorporate it into our regulations.
We refer to six CSA standards in our regulations, which means that what is in those standards become law and are part of our Regulatory Framework. Four standards apply to pipelines and two standards apply to power lines.
- CSA Z276 for pipelines that transport liquefied natural gas
- CSA Z341 for underground storage of hydrocarbons
- CSA Z662 for pipelines that transports liquid or gaseous hydrocarbons
- CSA Z246.1 for all pipeline systems
- CSA Group standard C22.3 No. 1 for Overhead systems of power lines
- CSA Group standard C22.3 No. 7 for Underground systems of power lines
Regulatory Documents
The Regulatory Framework also includes regulatory documents. The content of these documents must be followed in the same way as the law. Some examples of regulatory documents are:
- authorizations we issue and enforce, such as certificates (approvals to construct and operate pipelines greater than 40 kms in length);
- orders (authorizations to construct and operate pipelines less than 40 km in length), and permits (permissions to construct certain power lines);
- commitments applicants make as part of the application assessment process that are on the record;
- findings and corrective actions arising from audits and inspection reports; and
- orders or direction letters that direct regulated companies, or sometimes others, to do or to stop doing something that is under our mandate.
Guidance
Another key component of our Regulatory Framework is guidance. We post guidance products on our website to help regulated companies, Indigenous Peoples, landowners, interested parties and the general public to understand our requirements and to promote compliance.
Guidance is important and serves many functions – for example, we use it to:
- give a window into how we apply the law when we carry out our functions;
- instruct companies on what to include and how to submit materials to us so we can make timely decisions;
- guide Canadians on how to participate in our processes, like application reviews or regulation development;
- share our approach on matters like engagement that apply to many aspects of our work;
- explain our expectations; and
- explain how we respond when expectations are not met and how enforcement works.
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