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Thursday, June 14, 2012

Changes coming to the NEB Act in the Omnibus Budget Bill C-38

Here are a few of the changes coming to the NEB Act under Bill C-38, the omnibus "budget" bill:

  • The Chair of the NEB can issue directives to the members of the NEB hearing any application "regarding the manner in which they are to do so";
  • If the Chair is of the opinion that a time limit imposed on the hearing of an application is not going to be met, the Chair can change the composition of the panel or decide how to apply new Section 55.2 of the NEB Act (i.e. deciding to limit the ability to make representations to the Board):
"On an application for a certificate, the Board shall consider the representations of any person who, in the Board's opinion, is directly affected by the granting or refusing of the application, and it may consider the representations of any person who, in its opinion, has relevant information or expertise.  A decision of the Board as to whether it will consider the representations of any person is conclusive.";
  •  All applications and proceedings before the Board are to be dealt with as expeditiously as the circumstances and considerations of fairness permit, but, in any case, within the time limit provided for in the Act;
  • For Certificates of Public Convenience and Necessity under Section 52 of the NEB Act, the Board must submit a report and recommendation on an application within 15 months of the date on which a complete application has been submitted;
  • Once the report has been submitted, Cabinet may direct the Board to issue or refuse a certificate, and must provide reasons for the decision in its order;
  • The Board must make an order on a Section 58 exemption application within 15 months of receipt of a complete application
  • Added to Section 112 (the control zone and crossing section) is a new suite of direct penalties for anyone contravening Section 112(1) (the requirement for leave from the Board to work within 30 metres of a pipeline easement - the 30 metre control zone) or Section 112(2) (the requirement for leave from the pipeline company for permission to cross the pipeline with a vehicle or mobile equipment): on summary conviction, a fine of up to $100,000 and/or imprisonment up to 1 year; on conviction on indictment, a fine of up to $1,000,000 and/or imprisonment up to 5 years.
One can definitely question how the last change relates to "Jobs, Growth and Long-term Prosperity", which is the "short title" for the Bill.  Pipeline landowners need to be aware that a failure to obtain the consent required under Sections 112(1) and 112(2) of the NEB Act (not just failure to comply with an order made by the NEB or an inspector resulting from non-compliance with those sections) will constitute a federal offence subject to prosecution under the Criminal Code.