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Friday, September 24, 2010

NEB discusses plans for intervenor funding - still not available

In a letter to the World Wildlife Federation (WWF), the National Energy Board (NEB) confirms that it has had approval from Parliament since July to initiate a funding program for intervenors including landowners in its oral hearings processes, but that the program is still not in place.  WWF asked whether funding would be available for participation in the NEB's upcoming review of oil and gas drilling in the Arctic.  The NEB confirmed that funding through an intervenor funding program would not be available for the review.  Funding may become available for:
• Certificate of public convenience and necessity for a pipeline (section 52); Exempting orders respecting pipelines (section 58);

• Certificate of public convenience and necessity for an international or designated interprovincial powerline (subsection 58.16);

• Abandonment of an international or designated interprovincial powerline (subsection 58.34); and

• Abandonment of a pipeline (section 74). 
At present, landowners have no ability to recover costs for participating in those NEB processes.  The NEB has recently confirmed that even if funding does become available in the future, it will not apply to processes that are already underway.  However, since the funding program would be solely a procedural change to the process, there seems to be no legal reason why the NEB could not choose to provide funding to participants in ongoing processes.  For that reason, the NEB appears to have made a policy decision that it will not subject companies to the intervenor funding program unless the program was in place at the time an application was filed.  One can only guess at the reason for the decision.