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 Participant Funding - What landowners can expect

The National Energy Board has recently released the report of its Funding Review Committee on the allocation of $175,000 made available for participants in the Vantage Pipeline Project hearing.  Six First Nations groups applied for more than $332,000 in funding based on budgets for participation in the approvals process.  In spite of that request, only $175,000 was made available by the Chief Operating Officer of the Board, Pradeep Khare. 

The NEB's Funding Review Committee (FRC) took the $175,000 and divided it up among the six applicants for funding, making a recommendation on the allocation to Khare.  The FRC addresses in its report the question of how the groups are to participate with less than was sought in their budgets - the answer from the NEB is that they will need to focus on specific issues and/or work together to minimize costs.

It will be interesting to see what happens when private landowners become involved in project funding applications as well.  Will additional funding be made available if there are more applicants?  Or will the pie simply be cut up into smaller pieces?  Clearly, the participant funding program created by the NEB and the federal government will not protect landowners from the costs associated with protecting their rights in pipeline and other project applications.  Despite the program, they will continue to bear the costs of energy projects on their lands.

Read the NEB's Funding Report at: Funding Review Committee’s Report.

National Energy Board "Participant Funding Program" released

The National Energy Board (NEB) has now released details of its "participant funding program" that will apply to the following oral hearing processes:

•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 power line (subsection 58.16);

•Abandonment of an international or designated interprovincial power line (subsection 58.34);

•and Abandonment of a pipeline (section 74). 

Interested parties, including landowners, will be able to apply to the Board for funding of costs (up to 75% may be paid in advance, with the balance paid following the oral hearing).  However, only a limited amount of total funding for any single hearing process will be made available depending on the importance of the project as determined by the Board.  Also, the amount the Board may make available for funding will depend on the amount of money directed to the program by the federal government. 

Parties who wish to receive funding must enter into a contribution agreement with the NEB.  If a project application is subsequently withdrawn by a company, the party receiving funding must return all funds into the program except funds which have been irrevocably committed. 

It remains to be seen how this program will operate in practice.  Unlike cost recovery mechanisms available in some provinicial systems, landowners will not necessarily be entitled to recover their reasonable costs.  Instead, they will only be able to recover a share of whatever limited funding is made available for a specific hearing process.  Also, as opposed to provincial cost recovery mechanisms, the NEB funding will come from the government rather than being charged to the company making the application. 

Read about the program in the NEB Participant Funding Program Guide.

Canadian pipeline companies tell NEB to limit funding for intervenors

The Canadian Energy Pipeline Association (CEPA) has submitted comments to the National Energy Board (NEB) related to plans for the funding of participation in NEB processes by intervenors such as directly affected landowners.  In a letter addressed to the Secretary of the NEB, CEPA says that it believes it is "uniquely placed to offer our observations based on past experience."  In sharp contrast to the position taken by CEPA-member companies in the past, CEPA now suggests that funding for costs is an "appropriate and fair way" for intervenors to bring their views forward.  However, CEPA also says that:

Participants should be held accountable for their contribution to decision-making processes. Upon receipt of a cost claim (or through what ever accounting mechanism is adopted), NEB should conduct a post-hearing evaluation of the relevance of a participant’s contribution to the hearing, and costs should be awarded based on that evaluation. Cost awards should not necessarily cover 100% of costs incurred.

CEPA advocates close control of eligibility for costs and holding participants accountable for their "performance".

Read the CEPA letter at: Sept. 28, 2010.

National Energy Board confirms its proposed intervenor funding program still not available

In response to a request by the Peace Environmental and Safety Trustees Society (PESTS) regarding Spectra's proposed Dawson project, the National Energy Board (NEB) has confirmed that its proposed intervenor funding program is still not in place and is not available for participation in current processes.  Because Spectra's application was filed before the program has been initiated (which the NEB says will take place in fall 2010), Spectra will not be required to deal with participants in its application that have the benefit of whatever funding is eventually made available.

Read the NEB's response to PESTS at: GH-3-2010 Letter re participant funding.