On June 20, 2016, the Federal Government announced a
"comprehensive review of environmental and regulatory
processes" to be undertaken in the coming months. According to
the Government's Press Release, this is the
next step in recognizing a commitment to review and restore
confidence in Canada's environmental and regulatory processes.
The first step in that process was the Government's February
2016 announcement of an interim
approach and five principles to apply to in-progress infrastructure
reviews (discussed in an earlier
post). The interim approach will remain in place while the
current review proceeds.
The newly-launched review process is said to be premised on
consultation, and will consider the "modernization" of
the National Energy Board (NEB). The review process will also focus
on the federal environmental assessment processes associated with
the Canadian Environmental Assessment Act, 2012 (see here), as well as whether
recent changes to the Fisheries Act and the Navigation
Protection Act need to be revisited to "restore lost
protections" and "incorporate modern safeguards"
(see here and here).
The stated goal of the Government's plan to
"modernize" the NEB is "to ensure its composition
reflects regional views and has sufficient expertise in such fields
as environmental science, community development, and Indigenous
traditional knowledge." According to the Government's Press Release,
"modernization of the NEB will ensure it is able to continue
to effectively regulate energy developments in Canada in a way that
has the confidence of Canadians." This may involve reforms to
the NEB and the National Energy Board Act.
describing the NEB Modernization explains that the Government will
establish an Expert Panel this summer that will be tasked with
consulting Indigenous peoples, key stakeholders and Canadians
across the country and providing advice on potential NEB reforms
that need to be undertaken. Among other things, the items that may
be addressed by the Expert Panel are:
Governance and structure:
review of the composition of the Board, and the governance and
delegation mechanisms in place.
Mandate and future
opportunities: consideration of whether to expand the
NEB's mandate, for example "to support the transition to a
low carbon economy."
Decision-making on major
projects: review of the current decision-making roles of the
NEB, Minister and Governor in Council for projects, licences and
Compliance, enforcement and
ongoing monitoring: consideration of whether further tools are
required (in addition to the Pipeline Safety Act) to
oversee lifecycle oversight, safety and emergency preparedness and
land acquisition matters.
Engagement with Indigenous
peoples: review of whether to "enhance" the role of
Indigenous communities in monitoring pipeline development and
operations, as well as consideration about how to balance the
interests of Indigenous peoples against other societal interests in
examining ways to support greater stakeholder and public
participation in NEB activities.
Further details of the scope of each of these items is included
in the Draft Terms of Reference for
the Expert Panel. Interested parties may submit comments on the
Terms of Reference by July 20, 2016, following which the Expert
Panel members will be announced. Public consultations will be held
between September and December 2016. The Expert Panel is expected
to provide a report with recommendations to the Minister of Natural
Resources by January 31, 2017, which will be made public. It can be
expected (based on review of the Draft Terms of
Reference) that the report will include recommendations
for legislative and other changes that amend the legislative
framework for the NEB.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Alberta Court of Appeal's decision in Bokenfohr v Pembina Pipeline Corporation, 2016 ABCA 382 provides an important reflection on admissibility of evidence in the permission stage of an appeal in the oil and gas context.
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