What will NEB Modernization mean for landowners?

The Expert Panel appointed by the Minister of Natural Resources to provide recommendations on the future of the National Energy Board ("NEB") has now released its report: "Forward, Together - Enabling Canada's Clean, Safe, and Secure Energy Future".  Comments on the report will be accepted by the federal government until June 14, 2017.  You can submit your comments at the following link:  COMMENTS.

What the Expert Panel's recommendations will mean for pipeline and energy transmission line landowners is difficult to glean from the report; obviously, it's not possible to know at this point whether the recommendations of the panel will be adopted and/or implemented.  However, it doesn't appear that there will be much of benefit for landowners in any shift to a new Canadian Energy Transmission Commission ("CETC") framework.  The NEB may be getting a change in name, but the CETC seems likely to be more of the same for landowners.

The Report includes recommendations on changes to the way in which various project proposals are reviewed.  Without knowing how these changes will be implemented in legislation to replace the NEB Act, we can only speculate on the effect on landowners at this time.  Landowners should be concerned, though, about the potential for the erosion of the procedural rights that they do have under the current legislation.  The NEB Act is far from landowner-friendly, but it guarantees certain rights for landowners when faced with new project applications or the operation of existing facilities.  Will the Expert Panel's clear focus on the engagement of Indigenous peoples and the general public result in the further watering down of landowner involvement in the regulatory process?  

The addition of a Landowner Ombudsman is not likely to change anything for landowners in terms of navigating the regulatory processes; the NEB already has personnel assigned to assist those affected by energy infrastructure and projects in dealing with various processes.  There's mention of the possibility of funding for landowners to access relevant legal advice, but there is still no sign of any system of cost recovery for landowners who must participate in the regulatory process to protect their property interests.  Government should not be (under)funding landowner legal advice and participation in regulatory processes - energy transmission companies should be paying the costs actually incurred by landowners as a result of the companies' projects and operations.  

That "Respect for Landowners" is the last section in the Expert Panel's report, and consists of only 4 pages out of 100 in total, is telling.  The impression left is that the role of landowners in the review process is an afterthought or an add-on, and that is exactly where landowners have been in the NEB process all along.  Landowners should just hope that the current review process doesn't erode what few protections they have under the existing regulatory system.

NEB Modernization Report recommends creation of Canadian Energy Transmission Commission ("CETC") - Comment on the Expert Panel Report until June 14, 2017

The Expert Panel established by Canada's Minister of Natural Resources has now released its report of recommendations and advice on the modernization of the National Energy Board ("NEB"): "Forward, Together - Enabling Canada's Clean, Safe and Secure Energy Future".  The public is invited to comment on the report for 30 days until June 14, 2017.  Comments can be submitted through the following link:  COMMENTS.

Recommendations put forward by the Expert Panel include:

• The creation of a "formal Canadian energy strategy which plots the course for the future of energy in Canada, balancing environmental, social and economic objectives";
• High level inter-governmental coordination on all energy-related matters in order to realize the federal government's vision of the future of energy in Canada;
• Establishment of an "independent Canadian Energy Information Agency" with a mandate to collect and disseminate energy data;
• Transformation of the NEB into the Canadian Energy Transmission Commission ("CETC");
• Shifting of responsibility to make public recommendations to the federal cabinet on whether a preliminary major project proposal (for federally-regulated energy transmission) is in the public interest to the Minister of Natural Resources;
• Enshrinement in regulation of the definition of the "national interest", to be updated on a "reasonable schedule" to keep pace with societal change;
• The new CETC to continue to review project applications for transboundary pipeline and electricity transmission line projects, but major projects must first pass through the "national interest" review by the Minister of Natural Resources and cabinet;
• Joint Hearing Panel process for review of "major" and "significant" projects, the panel to consist of two CETC commissioners, two representatives of the Canadian Environmental Assessment (CEA) Agency, and one independent Commissioner.  One of the five commissioners must be Indigenous;
• Once major projects have passed through the "national interest" approval stage, the CETC to have full authority to approve or deny projects, restoring the authority that was taken away from the NEB and given to cabinet several years ago;
• The elimination of Section 58(1) of the NEB Act (exemption from the Certificate of Public Convenience and Necessity requirement for certain projects) and designation of three classes of projects - 1. Projects of National Consequence, requiring review by the federal cabinet; 2) projects of significance that require a Joint Review Panel review but not review by cabinet; and, 3) "smaller" activities that require review and approval but not a full Joint Panel review;;
• Enshrinement in legislation of two core principles: 1) no regulated activity shall proceed without proper approval; and, 2) all regulated activities must undergo environmental assessment commensurate with the scale and risk of the proposed activity;
• Establishment of a Board of Directors of the CETC responsible for strategy and oversight of the CETC, separate from the Commissioners of the CETC who would sit on hearing panels and make regulatory decisions.  Currently, the NEB consists of members who perform both functions;
• Minister of Natural Resources to define how to meet the commitment to ensure Indigenous peoples have a nation-to-nation role in determining Canada's national energy strategy;
• Government funding for an Indigenous Major Projects Office, under the governance of Indigenous peoples, which will define clear processes, guidelines and accountabilities for formal consultation by government on projects;
• For project hearings, the repeal of tests for standing, allowing for a wider array of input into project reviews (from simple letters to the provision and testing of evidence).  Letters of comment to be accepted without qualification;
• Establishment of a Public Intervenor Office to represent the interests and views of parties who wish to use the service, and to coordinate scientific and technical studies to the extent possible;
• Establishment of Regional Multi-Stakeholder Committees, open to all interested parties, with a mandate to review all aspects of the regulatory cycle and operational system;
• Establishment of a Landowners Ombudsman to review and make recommendations on improving relationships with landowners, provide advice and best practices on how to navigate the processes, enable better mediation, and potentially administer a fund so that landowners can access relevant legal advice;
• CETC Hearing Commissioners to take on alternative dispute resolution, with support from ADR staff as appropriate;
• Review of compensation practices and outcomes, resulting in a public report on the matter, so as to better understand and deal with compensation issues large and small.

Read the Report at: NEB Modernization Expert Panel Report.