National Energy Board

What Happened

A series of changes to the NEB Act in 2012 limited the scope of the National Energy Board’s project reviews and public participation opportunities. The Board also exercised its discretionary authority to apply these new provisions in ways that effectively silenced many environmental and Indigenous peoples’ voices in these proceedings. As a result of the 2012 changes and the Board’s implementation of them, project review processes have become increasingly politicized and less transparent.

The federal government is currently in the process of initiating a thorough review of the NEB Act to try to ensure the NEB’s accountability and transparency, and restore public faith in the regulator’s neutrality and promote the public interest (including Indigenous peoples’ rights and the need for a healthy environment).

 

Background

 

Historical context of the NEB

The National Energy Board (NEB) was created by the National Energy Board Act (NEB Act) in 1959. The Board’s establishment had been recommended by two Royal Commissions: the 1957 Royal Commission on Energy, and the 1955 Royal Commission on Canada’s Economic Prospects, both of which advocated for more centralized and developed processes for expanding the country’s oil and gas infrastructure.

The NEB Act created a new regulatory scheme for the oil and gas industry. It put the NEB in charge of regulating pipeline projects, imports and exports of natural gas, crude oil, and other petroleum products, and oil and gas exploration and extraction activities. The NEB was established as an independent expert regulating body. It was meant to make evidence-based decisions that would ensure the oil and gas sector would develop in a way that would protect the public interest.

The NEB Act, Board members, and NEB neutrality

Under the NEB Act, the NEB is able to exercise a very significant amount of a discretion and authority in ultimately determining whether or not a pipeline application should be approved. The Board determines the necessary level of detail required for project applications (including the level of detail required for maps of pipeline routes). The Board’s Chairperson designs the hearing process for each application and determines who will sit on its decision-making panels. The Board is also responsible for hearing and making findings with regards to the concerns of local communities affected by pipeline proposals. (Sections 6(2), 15(3), 16, 32(1), 52, and 58)
The NEB Act includes certain eligibility requirements for Board members’ appointment, including members’  residency and employment qualification. However, the document makes no reference to any requirements with regard to candidates’ professional background or experience. Historically, most of the Board’s members were involved in the public or private energy sectors before joining the NEB. Very few Board members have had professional backgrounds in the environmental sciences or with Indigenous communities or Indigenous traditional knowledge.
 
The NEB Act strictly prohibits financial conflicts of interests for board members: they cannot be directly involved in any financial activity concerning the energy sector. (s 3(4))

The Code of Conduct for National Energy Board Employees (Code of Conduct) also contains mandatory provisions to help ensure the Board’s independence. It applies to the Board’s CEO, Chair, Board Members and NEB staff. The Code of Conduct contains more detailed processes in order to prevent or disclose conflicts of interest. It also contains provisions that limit how Board Members and staff can interact with stakeholders during hearings in order to protect the impartiality of decision-makers.

Bill C-38 and Changes to the NEB Act

In 2012, the federal government introduced Bill C-38, which was unprecedented in its length and legal breadth. The bill was over 450 pages, and contained sweeping changes to Canada’s environmental legislation, in many instances erasing decades worth of environmental law. The bill effectively cancelled almost 3,000 environmental project assessments, 700 of which concerned fossil-fuel related projects. Bill C-38 also contained several significant changes to the NEB Act that effectively eroded the authority of the Board, and politicized its decision-making functions.

First, the scope of considerations to be taken into account by the NEB when determining whether to approve a pipeline was significantly constricted. The pre-2012 wording of the Act required the NEB, when determining whether to approve a project, to consider all issues that it found were related to the proposed project. Bill C-38 raised this threshold, requiring the Board to only consider factors that were “directly relevant” to making a determination. This change in language in the Act, was believed to be in response to participants in the Enbridge Northern Gateway pipeline who wanted the consideration of these factors to be included in the decision-making process for that project.

Second, significant changes were made with regards to the NEB’s authority to approve or reject applications for new pipelines. The NEB Act before Bill C-38 had allowed the Governor in Council (GIC, ie. federal Cabinet) to veto pipeline applications that were approved by the Board, but required the GIC to accept the Board’s decision to reject a pipeline application. Bill C-38 still permitted the GIC to veto pipeline applications, but also extended its authority to effectively grant pipeline applications that had been denied by the Board. This change essentially gave the GIC the final word in all application decisions, eroding the independence and authority of the NEB. It also undermined the expertise of the Board and evidence-based nature of the initial decision-making process. While the NEB hears and considers oral and written submissions from the pipeline proponent, interveners, and third party experts during hearings in order to arrive at its decision, the GIC has to make a final decision without the benefit of having been present at the fact-finding stage of these decision-making process. (s52(2))

Third, Bill C-38 narrowed opportunities for members of the public and public interest organizations to engage with NEB decision-making processes. While the previous version of the NEB Act called for general public engagement, the bill narrowed this requiring people to establish before the NEB how they would be “directly affected” by a project in order to be granted standing (i.e. be allowed to fully participate) in the process. (s55)

Fourth, timelines were imposed on NEB pipeline decisions. Under the bill, as soon the Board finds an application to be complete, it only has 15 months to determine whether to recommend that it be approved or rejected by the GIC. This 15 month period also applies to their recommendations and their final report summarizing public input and evidence introduced during hearings and public consultations. (s52(4)) Then, once the report is completed and submitted by the Board to the GIC, the GIC has three months to determine whether to approve the NEB’s decision, reverse it, or send it back for reconsideration. There are processes to extend these timelines in certain situations, however, the imposition of these time periods erodes the independence of the Board to determine its own process on a case-by-case basis. It also de-emphasizes more in-depth (and potentially longer) decision-making processes, especially for major projects. These constrained timelines can also impair meaningful public involvement and consultation with Indigenous peoples during the project approval processes.

Finally, the bill weakened in several ways the environmental considerations that could be taken into account in decision-making processes. Environmental provisions in the NEB Act were changed, along with corresponding changes in the Canadian Environmental Assessment Act that limited the scope of environmental reviews of pipeline applications. The bill delegated authority to the NEB to issue authorizations with regards to pipelines crossing navigable waters. The bill also dispensed with the mandatory requirement for the board to consult with the Ministry of Environment when determining whether to grant a permit to a project that would destroy critical habitat for species at risk.

Critics at the time saw these changes as an attempt by the federal government to conflate the oil and gas industry’s interests with the broader public interest, as these changes appeared to be in the industry’s favour. These fears were later proven when two letters from industry representatives (one from the Energy Framework Initiative, which is made up of the Canadian Association of Petroleum Producers (CAPP), the Canadian Energy Pipeline Association, the Canadian Petroleum Products Institute and the Canadian Gas Association; and the other from CAPP separately) were obtained and showed that everything these industry stakeholders had requested from the federal government in terms of NEB approval processes had become law within that same year.

At the same time, Bill C-38 was not solely responsible for changes in NEB decision-making processes that effectively marginalized environmental and Indigenous voices. The Board’s implementation of these changes also contributed significantly to this outcome.

First, in determining which issues were “directly relevant” to the proceedings, the NEB found that upstream impacts of major pipelines on the rate of oil sands expansion and to Canada’s climate change targets, did not meet this threshold. As such, they were deemed “irrelevant” to project approval processes. This was despite the fact that the Board was still empowered in the legislation to consider general issues of public interest (provided these public interest concerns were “directly related” to the project). Thus, the NEB in implementing the changes in Bill C-38 chose to apply them narrowly.

Second, in determining which members were “directly affected” by the pipelines, the NEB designed an 11-page form that needed to be filled out by anyone hoping to engage with the review process. This procedure applied to everyone regardless of whether they just wanted to submit a paragraph-long letter, or take on all the responsibilities of an intervenor. Further, after these applications were completed, there was no guarantee that applications would be accepted, and for those that were denied, no reasons had to be given. The forms also required personal information which would ultimately become public (as all applications are ultimately made available on the NEB webpage for the review project). Thus, in implementing the changes in Bill C-38, the NEB made the participation process more onerous and opaque.

In several pipeline decisions since 2012, Bill C-38 and the NEB’s implementation of its new provisions, have been legally challenged by environmental groups, scientists, and First Nations. These challenges have been heard by the NEB, Federal Court of Appeal, and some of these challenges have progressed to the Supreme Court of Canada. These challenges have been argued on grounds of procedural fairness, Charter rights to freedom of expression, and Aboriginal law duties to consult and accommodate Indigenous peoples. Some of these decisions are discussed in more detail as part of specific post-2012 NEB pipeline decisions.

Government spying on environmental groups critical of oil sands expansion
 
The exclusion and marginalization of environmental and Indigenous voices before the NEB became more extreme in 2013 when the federal government began demonizing and intimidating environmental and Indigenous advocates who expressed concerns about the NEB’s pipeline review process. Via Freedom of Information requests, the press discovered that NEB security was instigating and coordinating efforts with CSIS and the RCMP to monitor the activity of several environmental and Indigenous organizations and grassroots groups critical of oil sands expansion. These groups included Idle No More, ForestEthics, Sierra Club, EcoSociety, LeadNow, Dogwood Initiative, Council of Canadians, and the People’s Summit.

Hundreds of internal emails and memoranda were obtained that showed how the RCMP was collecting information on these groups in order to “protect” not only the Board members during public hearings, but industry stakeholders and pipeline project proponents. NEB security also emphasized the need to ensure a “strong uniformed presence” at NEB hearings as they believed "It is highly likely that the NEB may expect to receive threats to its hearings and its board members". Ultimately, many uniformed police and security guards were sent to public NEB hearings, despite the fact that these same NEB security officials later conceded that there was "no intelligence indicating a criminal threat to the NEB or its members".

In response to these discoveries by the press, Elizabeth May, MP and leader of the federal Green Party, noted, "What is particularly chilling about the Harper administration's approach is the conversion of government agencies to private spy agencies for private sector corporations… What is unacceptable is the marginalization, demonizing, and threat of criminalization of healthy debate in a democracy."

NEB decisions since Bill C-38

There have been several large pipeline applications before the NEB since Bill C-38 was passed. The decision in each case illustrates the failures of the NEB to ensure accountable and transparent processes and hear diverse public opinion and expert evidence.

The Line 9B Reversal

The Line 9B Reversal application involved a plan to reverse the flow and increase the capacity of 639 km of a pipeline between Toronto and Montreal. The application also included a request to have the pipeline carry heavy crude (i.e. bitumen), rather than the light crude (i.e. conventional oil) it had been carrying up to that point. The application to participate in the NEB’s review process involved the NEB’s new 11-page online form. Early in the hearing process, the NEB also determined that upstream impacts of the project, including effects on oil sands production and Canada’s climate change targets, would be outside the scope of their project review. Ultimately, the project was approved the project on March 6, 2014, subject to 30 conditions.

Forest Ethics subsequently initiated a judicial review of the NEB’s decisions with regard to how it limited the scope of review and structured the public participation application process. It argued that the NEB’s interpretation of “directly affected” people and “directly relevant” issues contravened the public’s Charter right to freedom of expression. However, the Court ultimately found that it was in the NEB’s authority to interpret its enabling legislation (i.e. the NEB Act) as it chose and that its determination with regards to scope and public participation were reasonable.

The Chippewas of the Thames First Nation also launched a judicial review of the NEB’s Line 9B Reversal decision on the grounds that the NEB did not have the jurisdiction to determine whether to approve or deny the project before the First Nation was consulted by the Crown about its potential impacts on the First Nation’s rights. The Federal Court of Appeal ultimately found that these concerns were outside of the NEB’s authority or sphere of responsibility. This case has since been appealed to the Supreme Court of Canada.

According to Canadian law, the federal government has a legal duty to consult with potentially impacted Indigenous peoples when considering an industrial project that could impact Aboriginal rights. The NEB is also responsible for ensuring a transparent and impartial review of the pipeline projects that may impair the exercise of these rights. These rights predate the establishment of Canada and are recognized in s.35 of the Canadian Constitution. These rights are also recognized internationally by the United Nations Declaration on the Rights of Indigenous Peoples that requires Indigenous peoples’ “free, prior and informed consultation and consent” to industrial projects on their traditional lands. Canada is a member of the Organization of American States (OAS) and the Inter-American Commission on Human Rights (IACHR) has recognized that “in relation to [Indigenous] peoples, States have a specific duty to consult, and ensure their participation in decisions on any measures affecting their territories....”.

The Northern Gateway decision

The Northern Gateway project, proposed by Enbridge in 2013, required the construction of two new pipelines, each 1,178 km long stretching from interior Alberta out to Kitimat on the BC Coast. A terminal was also proposed for Kitimat, from where tankers would take the transported crude oil to international refineries and markets. A Joint Review Panel (JRP) of the NEB and Canadian Environmental Assessment Agency (CEAA) ultimately approved the project, subject to 209 conditions, and the federal government affirmed the project approval with its conditions on June 17, 2014.

During the decision-making process, the JRP was required to actively engage with several Indigenous  communities that would be impacted by the proposed project. While some degree of consultation did occur, several Indigenous individuals and representatives expressed deep disappointment with the process and its outcome, believing their interests were not adequately considered in the approval. (p 48). Discussing the unfairness of the decision, the Union of B.C. Indian Chiefs Grand Chief Stewart Phillip said the then federal Conservative government “completely demonized and vilified Indigenous peoples of this country and has declared all of these [energy] projects in the national interest.”

Environmentalists were also frustrated with the decision-making process and outcome. Once the NEB’s report was provided to the GIC for its consideration, 300 scientists wrote an open letter urging then Prime Minister Harper to reject the NEB’s recommendation for approval on the grounds that the hearings were “flawed and unscientific”. They argued the JRP report failed to present a balanced and appropriate consideration of the project’s risks and benefits, failing to take into consideration the best available evidence, and failing to provide a “cogent rationale” for the JRP’s ultimate approval.

Once the GIC approved the NEB’s recommendations, a series of legal challenges were launched in the Federal Court of Appeal. Amongst those challenging the decision (i.e. the applicants) were eight First Nations (Gitga’at Nation, Gitxaala Nation, Haida Nation, Haisla Nation, Helltsuk Nation, Kitasoo Xai’Xais Nation, Nadleh Whut’en Nation, and the Nak’azdli Nation), four non-profit organizations (the Federation of British Columbia Naturalists, ForestEthics Advocacy Association, Living Oceans Society, and the Raincoast Conservation Foundation), and a abour union (Unifor). The result was 18 separate court challenges that were consolidated so they would all be heard at the same time. The applicants argued that: the JRP contravened environmental law with regards to potentially impacted identified species at risk; that private industry interests were wrongly equated with public interests; that the scope of the JRP’s considerations failed to include upstream effects of the pipeline; that the JRP was more lenient with the pipeline proponent than public interveners during the hearing process; that the environmental assessment failed to adequately consider impacts of the project on First Nations and their physical and cultural heritage; that the JRP failed to adequately consider the project’s impacts on constitutional Aboriginal rights; that First Nations were not adequately consulted or accommodated with respect to the project; and that the JRP did not provide adequate reasons for its ultimate recommendation to approve the pipeline application.

The  resulting Gitxaala Nation v. Canada decision, released on June 23, 2016, ultimately agreed with several of the First Nations’ arguments. The Court found that the imposed framework  for the consultation was too broad and that available funding for the consultation was insufficient. It also determined that the JRP was not a legitimate instrument to facilitate these consultations. (p 191). The Court agreed that the consultation processes should not be organized for the sole purpose of exchanging information between the stakeholders, but must involve constructive feedback, consideration of accommodation and of policy amendments (p 232). The Court concluded that the consultation process did not meet the minimum standard of the duty to consult established by the Court’s jurisprudence (p 244) and that it was “brief, hurried and inadequate”, leaving major issues affecting the rights of the First Nations ignored (p 325). The Court decided that before the project could proceed, the Canadian government had to either reconsider the concerns expressed by the First Nations or re-start the consultation process.

Peter Lantin, President of the Council of Haida Nation said he was thrilled with the decision. He said it validated the concerns he and others had raised over the consultation process noting “it always felt like they were trying to get to a yes somehow, some way”.

The federal government subsequently decided not to appeal the Court’s decision. The sunset clause on the JRP’s initial approval has passed, and the NEB has since suspended any hearing to determine whether it could still be extended. On November 29, the federal government formally rejected the Northern Gateway project.

The Trans-mountain hearings

On December 16, 2013, Trans Mountain Pipeline ULC (a wholly owned subsidiary of Kinder Morgan) submitted an application to the NEB to expand the existing Trans Mountain pipeline system between Edmonton, AB and Burnaby, BC. This would involve building 987 km of new pipeline, reactivating 193 km of existing pipeline, and installing other pipeline-related facilities including an expanded marine terminal on the west coast.

From the start of its decision-making process, shortcomings in the NEB project’s hearing process sparked widespread public outcry. Much of this concern was a result of the limited public participation opportunities, especially the 11 page application process which felt cumbersome to many who were ultimately dissuaded from participating as a result. Further, the requirement for interveners to be  prove they were “directly affected” by the pipeline in order to get standing meant that several scientific experts were excluded from intervening in the hearings. When Lynne Quarmby a molecular biologist at Simon Fraser University was denied standing to participate in the hearing because she sought to speak about the connection between oil pipelines to the BC coast and climate change, she noted, “I think we have an important debate ahead of us and to shut the people of Canada out of that debate is wrong."

In response to these limits on public participation, a group of eight scientists, civil liberty advocates, and environmentalists launched a legal challenge of these new NEB provisions and the ways they were implemented by the Board, arguing they suppressed public debate and infringed their Charter right to freedom of speech.

Tzeporah Berman, a long-term environmental advocate and author, and also one of the litigants in this case explained, “[w]e have never seen a process that is this restrictive in terms of content and the ability of the public to participate”. The BC Civil Liberties Association’s executive director Josh Paterson explained, “[t]his is an issue of democracy, this is an issue of the people in Canada having a chance to have their say in critical decisions that affect their communities, their families and themselves as individuals.”

The challenge was first brought to the NEB as a motion, and argued that the new NEB Act provisions determining the scope of project reviews and public participation rights (and the NEB’s interpretation of them) contravened the Charter right to free speech. The NEB found that its application of the new NEB provisions did not contravene the applications’ freedom of speech as the Board did not consider itself legally responsible for providing anything more than their interpretations of the new provisions required. Leave to challenge the Board’s finding at the Federal Court of Appeal and Supreme Court of Canada were denied.

Additionally, a group of 27 climate experts also published an open letter expressing their concerns that the NEB would not consider climate change impacts of the Trans Mountain pipeline. They wrote, “Canadians are not served when public agencies reject pertinent scientific and expert advice. Nor is Canadian democracy served when our government attempts to evade responsibility for matters as fundamental as our international commitments and responsibility to future generations”.

Marc Eliesen, the former BC Hydro CEO, withdrew and discontinued his intervention in the hearings calling them a “farce”. He released a letter in which he said "[c]ontinued involvement with this process is a waste of time and effort, and represents a disservice to the public interest because it endorses a fraudulent process." He argued the NEB was not holding Kinder Morgan accountable, letting them “get away without answering tough questions about their ability to respond to oil spills”.

On June 30, 2016 the new Liberal government tried to address these gaps in the process. It established a second three-person panel to consult with the public about concerns related to climate change and Aboriginal rights, which were excluded from the initial hearing process. This additional panel held in-person roundtables and town-hall meetings with affected communities, it also had an online questionnaire in which any members of the public could express their opinions on the project. The panel is required to prepare a report summarizing the feedback they receive, and submit it to Minister Jim Carr for consideration. However, since the panel has no decision-making authority, and is unable to assess evidence or permit any cross-examination of Kinder Morgan’s project application, critics have called it a poor “band-aid” solution.

The NEB has since released its final report, recommending that the project be approved by the GIC and that it be subject to 157 conditions. On November 1, the additional panel released its own report identifying six questions it urged the federal government to consider before reaching a decision on the pipeline. On November 29, 2016, the federal government approved the project.

Energy East and Eastern Mainline hearings

The Energy East and Eastern Mainline projects involve an approximately 4,500-km pipeline intended to transport crude oil from Alberta and Saskatchewan to Québec and New Brunswick and an approximately 245 km new natural gas pipeline between Markham and Iroquois, ON.

The hearing process began in June 2016. However, by July, the online National Observer newspaper broke a story in which it had found evidence that a private meeting was instigated by members of the NEB’s decision-making panel and the Board’s CEO with Jean Charest about TransCanada’s application. The meeting took place while the Board Members had begun their review of the application, and while Mr. Charest was a paid agent of TransCanada. Once this meeting came to light, the NEB initially denied the story, only later conceding its truth. Once notes from the meeting were obtained, it appeared as though the meeting involved a discussion about how the NEB could get the pipeline approved without too much Quebec opposition. Montreal’s mayor Denis Coderre, and several other interveners requested the Board Members’ recusal and a suspension of the hearing process doubting their integrity and impartiality.

On September 9, 2016, the three Members sitting on the National Energy Board’s (NEB) decision-making review panel for the Energy East and Eastern Mainline projects stepped down. At the same time, the Chair and Vice Chair of the NEB also recused themselves from any involvement with the review of these projects. The hearings were subsequently indefinitely suspended.

A promised NEB overhaul

In the Liberal party’s 2015 campaign platform, they pledged to make changes to the composition of the NEB, ensuring that it was comprised of Members who had more diverse professional and academic backgrounds in fields including environmental science, community development, and Indigenous traditional knowledge. They also promised to make changes so that future project assessments would take into account the upstream impacts as well as greenhouse gas implications of proposed projects. Finally, they promised a full review of laws, policies, and operational practices would be undertaken to ensure that future project reviews and assessments would involve fulsome consultation with First Nations, Inuit, and Metis communities to fulfil domestic and international law including Aboriginal and Treaty rights as well as the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration).

Shortly after the Liberals were elected, Prime Minister Trudeau wrote a mandate letter to the then newly appointed Minister of Natural Resources Jim Carr, requiring him to “modernize” the NEB. The Prime Minister specified that this should be one of the Ministry’s top priorities.

Between June 20 and July 20, 2016 the federal government held a comment period in which it collected input from members of the public about what the NEB review panel’s terms of reference should be.

On August 26, the federal government released the panel’s Draft Terms of Reference. It specified the panel would have to:

  • Ensure information about the review is made publicly available online;
  • Ensure the engagement and input of stakeholders (e.g. industry , environmental) and the general public with the review process;
  • Ensure the engagement of national and regional Indigenous Organizations, groups, and communities throughout the process; and
  • Provide a final report of the review panel’s findings, its recommendations, and a summary of the concerns it receives from stakeholders, the general public, and Indigenous peoples.

The scope of the NEB review will take into account six major areas in need of modernization including the Board’s governance structure, its mandate, Board member’s decision-making roles, legislative tools for lifecycle regulation, Indigenous peoples’ engagement in NEB processes, and more general public participation issues.

While panelists for this review have not yet been appointed, the federal government has explained it will be comprised of three individuals with expertise in environmental science, community development, and Indigenous traditional knowledge. The review panel will have to ensure robust public engagement occurs so that public input is considered during the review process. The panel will be required to directly engage with Indigenous organizations, groups, and individuals throughout its review. The review panel may also retain the services of third-party independent and non-governmental experts to advise the panel on aspects within its mandate.

The terms of reference specified that the consultations must commence in September 2016 and end by December 2016, with the panel’s final report due by January 31, 2017. However as of early November, no consultation had yet been initiated. Because of the Energy East and TransCanada controversies arising since the review was announced members of the public were especially concerned by the review delays. Then on November 8, 2016 the panelists for the review were announced, and the report deadline was moved back to March 31, 2017.

Relevant Dates

  • 1959: NEB established.
  • 2012: Bill C-38 introduces massive changes to the NEB eroding its independence and limiting opportunities for public participation in its decision-making processes.
  • January 2012: Northern Gateway hearings begin.
  • December 19, 2013: Final report by the JRP released recommending approval of the Northern Gateway pipeline.
  • April 2014: Trans Mountain pipeline hearings begin.
  • June 23, 2016: Federal Court of Appeal stops the Northern Gateway pipeline from proceeding due to inadequate consultation with Indigenous peoples potentially affected by the project.
  • June 30, 2016: Second panel established to consult with members of the public and Indigenous communities about the Trans Mountain pipeline.
  • June 2016: Energy East and Eastern Mainline hearings begin.
  • September 9, 2016: Energy East decision-making panel members recuse themselves and hearing is suspended.
  • November 8, 2016: Expert panel announced to modernize the NEB.
  • November 29, 2016: Federal government rejects the Northern Gateway pipeline and approves the TransMountain pipeline.

Role or Position

The 2012 changes to the NEB Act should not have limited the scope of the project reviews and public participation opportunities. These changes, along with the NEB’s narrow implementation of them, effectively marginalized environmental and Indigenous peoples’ concerns with these projects and stifled debate in Canada about the country’s environmental  legacy and duty to Indigenous peoples’ constitutionally and internationally-recognized rights.

As a result of these changes, the NEB review process was unfairly politicized and the pipeline approval processes have become less transparent. As a result, the NEB and NEB Act needs to be amended in order to better ensure the NEB’s accountability, transparency, and restore public faith in the regulator’s ability to promote a more diverse conception of the public interest.

Implications and Consequences

Freedom of expression

Bill C-38 restricted public participation in the NEB decision-making processes and limited the scope for public debate about how energy projects should be regulated in the public interest. Government-imposed timelines and political pressure on the NEB also frustrated adequate consultation with potentially impacted First Nations communities. When environmentalists and Indigenous organizations spoke out against being silenced by the NEB process, they were vilified and their activities were monitored by NEB security and the RCMP. This was even after officials recognized there was no cause to suspect they would engage in any criminal activity. The NEB’s restrictions on public debate concerning large energy infrastructure projects effectively weakens Canadian democracy.

Transparency

The NEB decision-making process contains impediments to public participation, access to information and mechanisms to test evidence, and freedom of expression. These impediments in turn limit the transparency of the NEB’s decision-making process. Because amendments to the NEB Act were adopted by the government from recommendations made by the oil and gas industry, because environmental concerns are often ignored by the NEB or else treated superficially, it is reasonable to believe that private interests have a considerable and disproportionate influence on the NEB’s review of project applications.

 

Published on: 2016-12-10

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