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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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