As mentioned in Section 1.4.2, the Northern Gateway Project drew an extraordinary amount of public participation, and as a result the review process lasted significantly longer than the NEB had originally anticipated. The Conservative government was seemingly frustrated by this – a sentiment best illustrated by an open letter from then-Natural Resource Minister Joe Oliver, published in January, 2012. This letter, released the day before the first NGP public hearing session, is an important precursor to the events that have since followed, and as such I have included the full text as Appendix A of this thesis.
In his letter, Oliver (2012) affirmed “Canada’s commitment to diversify our energy markets”
and disparaged the efforts of “environmental and other radical groups” who sought to “block this opportunity” by “hijack[ing] our regulatory system to achieve their radical ideological agenda”.
Strong language aside, this letter was a clearly-stated intention to reform Canada’s regulatory review process for critical infrastructure projects. Oliver’s letter expressed a need to eliminate regulatory overlap, make the review process more timely and efficient, and prevent interest groups from using public hearings as platforms to address other issues. This was presumably the logic that led to the sweeping reforms tabled in the government’s budget implementation bill that year, called the
Jobs, Growth, and Long-term Prosperity Act, or more commonlyknown as Bill C-38.
Bill C-38 was 425 pages long and amended or repealed 69 different pieces of Canadian legislation (Galloway and Leblanc, 2012). This was an unprecedented scope for a budget implementation bill, and as such Bill C-38 generated a great deal of controversy. In the two months it was debated in Parliament, opposition parties called for 871 amendments – not one of which was accepted by the Conservative majority (Galloway and Leblanc, 2012).
Bill C-38 touched more than a dozen pieces of legislation relevant to environmental protection
in Canada. Although many of these legislative changes are significant, I will limit my discussion
to the changes that are directly relevant to this thesis: changes to the Canadian Environmental
Assessment Act and the National Energy Board Act.13
1.5.1 The Canadian Environmental Assessment Act, 2012
The most striking change effected by the 2012 budget bill was the replacement of the existing
CEAA 1992 with an entirely new piece of legislation: the Canadian Environmental Assessment Act, 2012 [CEAA 2012]. Meinhard Doelle (2012) offers a careful treatment of the differencesbetween these two Acts, as well as their potential implications. For the purpose of this thesis, I will cover only two of these changes: the shift in who is responsible for environmental assessments [EA], and the legislated scope of the review.
Who is responsible for EA – The CEAA 2012 limited the federal bodies responsible for EA to three: the CEA Agency, the Canadian Nuclear Safety Commission, and the National Energy Board. For projects where the NEB was identified as the responsible authority – such as major pipeline projects – it would be the sole federal agency conducting the EA. A joint panel review such as the JRP for the NGP was no longer permitted (Doelle, 2012).
Scope of the review – Although the NEB was now the sole regulatory body responsible for the EA, it still needed to conduct its review in accordance with EA legislation. This was where some of the other changes made in CEAA 2012 became important:
-
Environmental effects: The CEAA 1992 defined the term “environmental effect” to include essentially
any change to the environment caused by the project, and evenextended this to include effects on things like health, socio-economic conditions, and cultural heritage (Canadian Environmental Assessment Act, 1992: s. 2(1)). By contrast the CEAA 2012 set very specific limits on what it considered an “environmental effect”.
For example, it included “change to […] fish and fish habitat as defined in the Fisheries
Act” (a definition which was also significantly altered by Bill C-38). While CEAA 2012did make mention of broader concerns such as health and cultural heritage, it did so strictly with respect to Aboriginal peoples, or in cases where other legislated federal duties apply (Doelle, 2012).
-
Comments from the public: While the “Factors To Be Considered” in
CEAA 1992included “comments from the public that are received in accordance with this Act and the regulations” the
CEAA 2012 explicitly qualified this factor in the case of NEBreviews, saying instead that it must consider comments from “interested parties”
(CEAA, 2012: s. 19(1)) – the significance of which is discussed in the following section.
14
1.5.2 The National Energy Board Act
Bill C-38 also made significant changes to the NEB Act, two of which are crucial in the context of this study:
Decision made by the GIC – Prior to Bill C-38, the NEB itself had the power to approve or reject projects under its jurisdiction. The amendments made by Bill C-38 shifted this decision-making power to the Governor in Council [GIC] or, in other words, the government. The NEB was now tasked with preparing a report that made a recommendation to the GIC, which the GIC could then heed or ignore (NEB Act, ss. 52-54). As George Hoberg (2013) points out, this amounted to a removal of one of the “checks and balances” to federal power, in that it transferred decision-making power from an independent regulatory agency, to the government.
Standing – Perhaps the most significant change made to the
NEB Act was the addition ofSection 55.2 which provided a basis for determining who the “interested parties” referred to in the
CEAA 2012 were (i.e. who would be allowed to participate in the NEB public hearings).The right to participate was now granted by the NEB on two grounds (as elaborated in NEB, 2013a):
-
Directly Affected: Any applicant who would be directly affected by the granting or refusal of the project application must be granted participation in the NEB hearing. The Board decides on a case-by-case basis whether or not an applicant is directly affected.
When making its decision the Board may consider the nature of the person’s interest (specific or detailed interest, vs. general public interest) and whether or not the project would have a direct impact upon those interests (including the degree, likelihood, and frequency of the impact).
-