Royal Assent was recently granted to amendments to the National Energy Board Act and related legislation as part of changes to environmental legislation under Bill C-38, The Jobs, Growth and Long-Term Prosperity Act. Many of the amendments to the National Energy Board Act that arose from Bill C-38 are now in force. However, amendments that exempt pipelines and international power-lines from the Navigable Waters Protection Act and implement administrative penalties await a further Cabinet order.
Procedural Changes
The new legislation modifies the National Energy Board's approval process for pipelines. The Board's recommendation as to whether a certificate of public convenience and necessity ("CPCN") should be granted for a pipeline will be referred to Cabinet. Cabinet will then direct the Board as to whether or not a CPCN should be issued and what terms and conditions should apply. This represents a shift in the responsibility for the issuance of a CPCN from the existing scheme wherein the Board issues a CPCN, subject to Cabinet approval.
Time Limits
As with the amendments to the other environmental legislation, speedy decision making is emphasized. The Chair will be given responsibility for setting time limits for the Board's work and ensuring that the Board meets these time limits. Time limits are also imposed upon the Board. The Board will have 15 months in which to consider CPCN applications and prepare its recommendation to Cabinet. The clock stops on the hard time limit where the Board requires the applicant to provide information or undertake a study. As well, the Minister may extend these time limits by up to three months. Further extensions may require the approval of Cabinet.
Cabinet's direction to the Board with respect to the issuance of a pipeline CPCN must be made within three months of the submission of the Board's recommendation, but again, Cabinet may extend this time limit. There will also be deadlines for the judicial review of these CPCN directions made by Cabinet. If a person wishes to appeal the CPCN direction, they must make an application for leave to the Federal Court of Appeal within 15 days after the order is published in the Canada Gazette. A judge may, for special reasons, grant an extension of this time.
Public Participation
Public participation will also be affected by the amendments. Previously on an application for a pipeline CPCN, the Board would consider the objections of any "interested person". Under the new legislation, the Board is to consider the representations of any person who is directly affected by the granting or refusing of the application or any person who has relevant information or expertise. This appears to represent a narrowing of the scope of public participation.
Navigable Waters Permits
Another amendment is the exemption of international and interprovincial pipelines and power lines from the Navigable Waters Protection Act. If NEB authorization is provided for these projects, a separate approval under that Act will not be required, reducing regulatory duplication for these projects.
Administrative Penalties
Amendments to the National Energy Board Act will also give the Board the ability (with the approval of Cabinet) to make regulations setting out violations under the National Energy Board Act and penalties for these violations. The maximum penalties are $25,000 in the case of an individual, and $100,000 in the case of any other violator. A regime for prosecuting violations is also prescribed.
Conclusion
These amendments represent another manifestation of the federal government's desire to streamline the regulatory approval of projects. The intended purposes appear to be an attempt to reduce duplicative project approvals, reduce the scope of public participation and introduce a new scheme for administrative penalties under the Act. Particularly noteworthy are that projects subject to review by the National Energy Board will be subject to time limits throughout the review process and that there will be a shift in ultimate approval for pipeline projects to Cabinet.
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