The expert panel created to study and propose solutions for reform of the National Energy Board ("NEB") has released its report, entitled "Forward, Together: Enabling Canada's Clean, Safe and Secure Energy Future" ("NEB Report").
The NEB Report comes on the heels of the report issued by the expert panel tasked with conducting a similar review of the federal environmental assessment ("EA") regime. Both the EA and NEB expert panels were formed as part of a process ultimately aimed at restructuring a large portion of Canada's federal environmental protection regime.
The NEB Report focuses on recommendations for modernizing the NEB by looking to its structure, role and mandate. Its findings are underpinned by 5 principles: "living the nation-to-nation relationship"; "alignment of NEB activities to national policy goals"; "transparency of processes and decision-making and restoring confidence"; "public engagement throughout the lifecycle"; "results matter: regulatory efficiency and effectiveness."
A central recommendation from the NEB Report is creation of a new body (the "Canadian Energy Transmission Commission"), which would be responsible for approval decisions for major projects that currently fall under the prevue of the NEB. A second proposed body, the Canadian Energy Information Agency, would provide publicly available data, information, and analysis on energy issues and policy.
Like the EA expert panel report, the recommendations of the NEB Report largely focus on ways to enhance public participation and, in particular, engagement with First Nation governments and communities. Among other recommendations, the NEB Report recommends enhanced public participation at every phase of regulation. This would happen during the consideration of whether a project is of "national interest" (an analysis to be done by federal cabinet), during panel reviews, and in all aspects of the CETC's governance.
Current "standing" tests that determine who can participate in NEB hearings and operational oversight would be would be abolished. All Canadians would be provided an opportunity to submit a Letter of Comment to the CETC during its decision-making process.
Other procedural changes would be aimed at enhancing public engagement in proceedings. The NEB Report highlighted, in particular, the current inability of intervenors to consistently and meaningfully test evidence by way of cross examination as a long-standing barrier to meaningful participation.
Another theme of the NEB Report is the role of climate change in the context of NEB decision making. Without making many specific recommendations, the NEB Report does suggest that upstream and downstream climate impacts ought to be considered during the determination of whether a project is in the national interest.
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