The Canadian Press
The question of whether the federal cabinet should be able to override National Energy Board decisions is expected to be addressed today in a report on the future of the regulator.
The five-member panel studying the structure, role and mandate of the NEB is to hand in its report to Natural Resources Minister Jim Carr today.
The review fulfills part of a ministerial mandate letter Prime Minister Justin Trudeau gave to Carr. The letter asked Carr to “modernize the National Energy Board to ensure that its composition reflects regional views and has sufficient expertise in fields such as environmental science, community development and Indigenous traditional knowledge.”
Carr was unavailable to discuss the overhaul ahead of today’s release. Last fall, when he appointed the panel he said his message to them was simple: “Go recommend the best regulator in the world.”
The former Conservative government passed legislation in 2012 that allowed cabinet to approve projects that the NEB said should be rejected. Before the legislation, the NEB only forwarded proposals to cabinet that the board recommended be approved.
Lesley Matthews, a consultant on regulatory strategies in the energy industry and former employee at Kinder Morgan Canada, said in a commentary for the C.D. Howe Institute, that the government should not be able to overturn an NEB decision, except through the courts.
“What’s the point of going through this process of having people present evidence and having the decision made on evidence if it can just be made on non-evidence,” Matthews told The Canadian Press.
She said at the same time the government must create an energy policy framework for the country that would serve as the guidebook to the NEB as to whether a particular project fits Canada’s vision or not.
The panel report will also likely address how to limit conflicts of interest among National Energy Board members or panellists enlisted to review a specific project. A perceived conflict of interest derailed the review process for the Energy East pipeline project last year after some of the appointees met privately with former Quebec Premier Jean Charest, who was lobbying on behalf of TransCanada Corp., the company proposing the project.
Matthews said the government and NEB should even review whether the board’s headquarters should be in Calgary, where its position alongside most of the headquarters of the companies it regulates may be perceived as troublesome.
Erin Flanagan, program director of federal policy for the environmental group the Pembina Institute, said her organization wants the NEB to give up its role as the environmental assessor of projects to the Canadian Environmental Assessment Agency.
Flanagan said the NEB and the Canadian Nuclear Safety Commission are the only two national bodies that still do their own environmental assessments.
Flanagan also wants fewer restrictions on who can appear before the board during a project review. There used to be no real limits on who could be heard but the 2012 changes to the National Energy Board Act limited participants to those directly affected or with clear expertise on the matter.
The National Energy Board has a mandate to regulate the construction and operation of fossil fuel pipelines and power lines that cross provincial or international borders, as well as the imports and exports of natural gas, the export of oil and electricity and oil and gas exploration. It makes recommendations to the Natural Resources minister.
It is an arm’s length, quasi-judicial tribunal, which reports to Parliament via the minister.
