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Home > Speeches and Presentations > Speeches and Presentations 2007 > Regulatory Processes: Issues and Opportunities

Regulatory Processes: Issues and Opportunities

Presented by
Strater Crowfoot
Board Member
National Energy Board

First Nations Energy Summit

2 April 2007

Purpose of presentation: to talk about the NEB's role, and some of the unique aspects of our approach to consultation and engagement with Aboriginal people in our processes, and to discuss the NEB's expectations for project proponents.

What is the NEB?

Photo: NEB's MGP Hearings

The NEB is an independent, federal agency with the responsibility for regulating:

• Construction and operation of pipelines that cross inter-provincial, international, or provincial-territorial boundaries
• Tolls and tariffs on pipelines
• International electricity facilities (i.e., power lines that cross the Canada-US border)
• Import and export of natural gas, and the export of oil and electricity
• Oil and gas development in certain "Frontier" areas (exploration, production, transmission) such as the Beaufort Sea, Gulf of St. Lawrence and off the West Coast of Vancouver Island

The NEB also monitors and reports on energy sector issues and publishes Energy Market Assessments to report on our findings. Recently, we have published EMAs on emerging technologies for power generation and on the oilsands.

What does the NEB do?

• A truly national presence. This pictures shows you the major pipeline systems regulated across Canada by the NEB. It doesn't show you the international power lines.
• There are ~ 45000km of pipe regulated by the Board at this time.
• This picture does not include the hundreds of smaller pipelines under our jurisdiction (mostly NEBC-AB, AB-SK, Southern Ont-US).

NEB Purpose

Our purpose statement reflects our mandate given by Parliament and drives all of the Board's business

To turn this purpose statement into something manageable, the NEB has 5 goals that break down the statement:

1. Goal 1 talks about safety.
2. Goal 2 talks about environmental protection.
3. Goal 3 relates to economic efficiency and comes directly from the wording of the purpose statement.
4. Goal 4 relates to public engagement and the reason why we're here today: The NEB fulfills its mandate with the benefit of effective public engagement.
5. And lastly, Goal 5 is directed at how the NEB manages itself internally.

You may have noticed the phrase 'in the public interest' in the NEB's purpose statement. We use this all the time. It is a key idea in how the NEB regulates projects and facilities and I will talk more about this concept in the next slide.

Unique Characteristics of the NEB

Photo: NEB in Tulita/Fort Good Hope, MGP hearings, 2006

When trying to understand the NEB's role in consultation & engagement, particularly with respect to Aboriginal concerns and issues related to large pipeline projects, there are four unique things about the NEB that are important to understand:

• The NEB functions as an independent federal agency. We are an agency within the federal government, but we function at an arm's length from other activities of the federal government. This is important to understand when considering the decisions of the Board. The Board Members' decisions cannot be influenced by political interference and are unbiased, based on the evidence presented before the Board in its formal proceedings.
• The Board functions as a quasi-judicial tribunal. This means that the Board's public hearings look a lot like a court, that information must be presented by the public to the Board Members as evidence, this evidence is available on the public record, and that everyone participating has a chance to test and question the evidence on the public record.
• As a quasi-judicial tribunal, the Board is bound by the rules of natural justice during its public hearings. The rules of natural justice dictate that among other things, during a public hearing, the Board cannot take part in private dealings with any parties to the hearing. All the information on which the Board will base its decision must be available to all parties.
• The Board's decisions are said to be made in the public interest, which means that Board Members must balance the benefits of a proposed project with the burdens. Specifically the role of the NEB is to balance safety, security, environmental, and economic aspects of a proposed project with the public's views on the project when reaching its decision - local versus regional versus national impacts. Public interest is defined very broadly and the definition is influenced by a combination of local, regional and national factors.

Outside the NEB's Mandate...

Now that I have told you a bit about what the NEB does, it is just as important to tell you a bit about what we don't do in order to define who we are:

• You're likely to be familiar with your provincial regulators, like OGC - same idea but they look after a couple areas that we don't.
• For example, we do not regulate energy matters within the boundaries of a province. So, we don't regulate exploration, gas/oil wells or seismic activity within the province of BC or pipelines that stay within BC's provincial boundaries.
• We also don't set the prices you see at gas stations or the price of natural gas used to heat homes - that is usually a provincial role.
• The NEB does not develop federal policy regarding energy matters (NRCan does), however, the Board's decisions would consider relevant federal policies.
• The NEB does not have its own source of funding for hearing participants. However, when the Canadian Environmental Assessment Agency is involved in certain hearings, those that require the highest level of EA (such as a review panel process), that agency can provide participant funding. This inability to provide participant funding directly can be a challenge for parties to participate effectively in the NEB's processes. We recognize this and are looking at ways to be able to provide this funding directly, however, at this time, we are unable to offer direct participant funding.
• Finally, the NEB does not act on behalf of the Crown since we are an arm's length tribunal. Therefore the Board cannot consult with Aboriginal people on behalf of the Crown to fulfill any "duty Crown" that may exist.

Opportunities and Expectations in the Regulatory Process

Photo: NEB's MGP hearings in Fort Providence

The Board focuses on getting the best information possible on the public hearing record. The Board requires applicants to make early contact with potentially affected Aboriginals and to document any concerns raised about the project and address those concerns to the degree that it can. This information is filed with the Board as part of the application. The Board also encourages Aboriginal people, and other groups, individuals and/or organizations that may be affected by the project to participate directly or provide their views so that they may be considered before the Board makes a decision.

One very useful document for the public is our Q&As on "Consideration of Aboriginal Concerns in National Energy Board Decisions". I brought a number of these Q&As with me and they are also available on our website homepages under "Consultation with Aboriginal People".

I would like to talk now about some of the specific expectations of project proponents throughout the lifecycle of a project, and the options Aboriginal people and others have to be engaged in the NEB's processes.

Lifecycle Opportunities

Here is a typical picture of the lifecycle of a project, say a pipeline, and how the NEB regulates it. There are opportunities for the public and Aboriginal people to be involved in the NEB's processes at each stage of the lifecycle of a project.

Typically, there is more interest by the public and aboriginal people in the earlier stages of a pipeline project - during the planning, application, and public hearing stages, so I am going to focus my attention at these stages for the next few slides.

During the public hearing stage, as I noted earlier, the Board focuses on getting the best information before it with respect to Aboriginal concerns and interests before making its decisions. There are three different ways Aboriginal people can be involved in Board hearings - by making an oral statement at the hearing, by writing a letter or comment, or by becoming a full-fledged intervener. The Board also makes sure it holds its hearings in the communities that will be most affected by the proposed project - that way more people can participate without the burden of having to travel to another town or city.

In addition to hearing directly from potentially affected Aboriginal people, the Board asks proponents to provide information about its consultation activities with the public and Aboriginal people. This usually takes place during the planning stage of any project. The Board is not involved at the planning stage so the project proponent or applicant provides the initial information about a proposal. This is the stage when the proponent is developing the concept of the project and identifying the people with whom they must consult. While the NEB doesn't have a role to play during the project planning stage, it has specific expectations of proponents with respect to public and Aboriginal consultation, and information about these activities must be submitted with the proponent's application.

NEB Expectations for Applications

Photo: dancing feet during opening ceremony of NEB's MGP hearings in Inuvik, January 2006

The Board spells out its expectations for proponents in its Filing Manual, which is a sort of terms of reference for all applications to the NEB.

Chapter 3 deals with the information that is required in an application with respect to a proponent's consultation program and the results thereof - this information pertains to general consultation with the public and more specific consultation with Aboriginal people. The NEB notes in the Filing Manual that "when consultation includes Aboriginal groups, consider establishing a consultation protocol in collaboration with these groups that takes into consideration their needs and cultural elements." (page 3-3)

Basically, the NEB is looking to understand the proponent's philosophy and commitment with respect to consultation, how the consultation program is designed to reflect this philosophy or commitment, and the results of the implementation of the program - i.e., what issues arose, what was resolved, what remains to be resolved and how/when will these issues be resolved. Specifically, the NEB is interested in the specific activities of the proponent and issues that are of concerns to Aboriginal people in the project area.

As I noted in the previous slide, a public hearing is usually held for major pipeline applications - those over 40 km in length. Hearings are used to further discuss the information in an application. The NEB will often hold early public meetings in project area prior to the hearing to discuss the hearing process and how to participate in the proceedings. All parties can bring forward their views to the Board.

When the NEB makes its decisions, it takes into consideration all of the information that is before it.

Expectations during Construction and Operation

The NEB regulates all stages of the lifecycle of a project, and it has clear expectations that a proponent will liaise with Aboriginals and members of the public in the project area throughout the construction and operations phases of a project.

If a project is approved, the NEB will place conditions on how that project will be constructed and operated.

The company is also subject to all the of the regulations and guidance under the NEB Act, including the NEB's Operations and Maintenance Requirements and Guidance Notes, which have specific reference to a ongoing "public engagement program" that includes potentially affected Aboriginal people.

NEB Initiatives

Beyond the formal public hearing process and the NEB's expectations for proponents, the NEB also has its own initiatives to meet the needs of the public and Aboriginal people.

We are always looking for newer/better/more effective ways to engage the public in our processes. During the pre-hearing, planning stage, information needs to be shared by all interested parties. Important information that is shared during the pre-hearing/planning phase will include:

• From the company - information about the project;
• From the Aboriginal people - knowledge about the land, the environment, the communities; and
• From the NEB - information about the different phases of the hearing process and our role during the lifecycle of the pipeline

The NEB is also completing a Northern Engagement Research Project. Board staff visited 4 northern communities in Jan 2007 to determine how those communities would like to be engaged by the NEB and to understand how information is shared within communities. This is a participatory research project, we expect both the NEB and the communities will benefit from the result of the research - communities will receive a report on the engagement practices they use within their communities.

Finally, the NEB has its own Aboriginal Engagement Program that is not linked to any one specific project; rather its goal is to increase the understanding of Aboriginal people so that, in the future, they may participate more effectively in the NEB's processes to present their views on a proposed project directly to the Board. The AE program involves NEB staff visiting Aboriginal communities on their request to answer questions about NEB processes and upcoming applications.

Service standards have become an essential tool for building client-focused service within our organization. E.g. 80% of RFD will be released within 12 weeks or less following a hearing; when a landowner contact the NEB with a complaint, he or she will be notified within 10 days of the process that will be used to resolve the complaint; service standard for responding to information requests received through our website is 2 days, although complex issues may take longer.

We want to provide clear processes and deliver high quality, timely service to our stakeholders.

Summary

In summary,

1. The Board considers the concerns and interests of Aboriginal people with respect to a proposed project before it makes a decision. Some information is provided by the proponent as a result of its discussions with Aboriginal community representatives. At the hearing the Board can hear directly from Aboriginal people.
2. The Board has specific and detailed evidentiary requirements for project proponents regarding concerns raised by Aboriginal people in respect of the project. This information can be tested by the Board and all parties during the public hearing.
3. The NEB has ongoing, life-of-the-project expectations for community engagement by a proponent with respect to an approved and constructed facility.
4. Lastly, the Board continues to engage Aboriginal people through its own activities, including the Aboriginal Engagement program, to increase the capacity of Aboriginal people to more effectively engage in the Board's processes.

For More Information

I am going to be around the conference for the rest of the day. If you don't catch up with me today, there are a few more ways to get information about the NEB.

You can call us toll-free at this number 1-800-899-1265.

You can visit our website, which contains a useful link with the title Consultation with Aboriginal People on the left-hand side of our homepage.

Or, if you plan to be in Calgary, you can visit us - we have a library that is open to the public.

 

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Date Modified:

2011-10-28