Coastal GasLink challenge to be heard in March

The National Energy Board will hear final arguments into whether the Coastal GasLink pipeline project falls under federal or provincial jurisdiction in March 2019.

In a letter Monday to participants, the board said the issue more specifically is whether the project, which will transport natural gas from northeast British Columbia to the LNG Canada LNG facility at Kitimat, forms part of a federal work or undertaking under the Constitution Act.

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Mike Sawyer, a British Columbia environmental activist, had asked the NEB to issue a declaratory order that CGL project is properly within federal jurisdiction.

In order to address the issue, the board said it would consider factual evidence on the commercial and operational structure of the project relative to certain other infrastructure.

It anticipates it will receive and consider evidence regarding ownership, management, physical connection, and the commercial and functional integration of the project relative to other energy infrastructure, including infrastructure upstream of the LNG Canada facility (for example, the supply and transmission of natural gas).

The NEB also will consider and apply the relevant legal tests and constitutional principles regarding jurisdictional matters under the Constitution Act.

“This proceeding is not about whether to approve the Project, or whether it is in the public interest,” the board emphasized. “As such, the Board will not consider issues that are typically relevant to a determination of whether to approve a project application. This includes issues such as the economic benefits of the Project, the environmental effects of the Project, and the impact of the Project on any rights and interests.”

The board similarly will not consider evidence on the sufficiency of the provincial process, including any consultation that has or could be undertaken under that regulatory scheme.

The NEB’s decision following the hearing will not in itself allow for the construction or operation of the project. If the board determines that it ought to take jurisdiction over the project, it would require a separate application and hold a separate hearing to determine whether to approve it and project-specific issues would be considered at that time.

The Attorneys General of Canada, Alberta, British Columbia and Saskatchewan were granted standing in accordance with the Federal Courts Act and they have been included in the proceeding as intervenors.

NOVA Gas Transmission Ltd. (NGTL) stated that it would provide information which includes the proposed physical connection of the project. LNG Canada Development Inc., PetroChina Kitimat LNG Partnership, Progress Energy Canada Ltd. and North Montney LNG Limited Partnership, Diamond LNG Canada Partnership, Shell Canada Energy and Kogas Canada LNG Ltd. stated that they can provide evidence regarding, among other things, the commercial and functional integration of the project relative to other energy infrastructure, said the board.

The NEB also granted intervenor status to Sawyer and to Ecojustice. The board said the pair presented the most compelling arguments that they can provide the board with relevant information or expertise that could best assist it in its consideration and assessment of the matter, including with respect to the relevant legal tests and constitutional principles relating to the jurisdictional question before it.

The companies were granted intervenor status on the basis that they possess relevant information or expertise that is specifically in relation to the board’s decision on the jurisdictional issue before it, said the NEB. “The factual underpinnings of this matter are of particular importance in light of the question of mixed law and fact before the Board,” it said.

Other applicants for standing provided insufficient information on the nature of their expertise or information, or sought to rely on some general knowledge, or ancillary matters such as an expertise in environmental issues, said the board. In the case of certain business associations including the Canadian Association of Petroleum Producers (CAPP) for example, the regulator noted that other participants within the proceeding would be able to provide similar expertise and perspectives on the jurisdictional issue before it.

The NEB also declined to provide standing to Elizabeth May, Green Party Leader and B.C. MP, as well as to 12 Indigenous groups and a number of environmental, business groups and municipalities that also had sought to participate. 

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