Pipeline Replacement Project – Public Interest
In this decision, the NEB determined that it was in the public interest to approve Enbridge Pipelines Inc. (“Enbridge”)’s application to construct and operate the Line 5 St. Clair River Replacement (the “Project”), pursuant to section 58 of the National Energy Board Act (“NEB Act”). The NEB also approved the decommissioning of the existing segment of the Line 5 pipeline, pursuant to section 45.1 of the National Energy Board Onshore Pipeline Regulations (“OPR”).
The NEB found that Enbridge designed and implemented consultation activities that were appropriate for the size, scope, and scale of the applied-for Project.
The NEB found that Enbridge made reasonable opportunities available to Aamjiwnaang and other affected Indigenous communities to identify any concerns regarding Project impacts to traditional land and resource use. The NEB noted Enbridge’s commitment to work with Indigenous communities to address any further concerns that may arise.
Adequacy of Crown Consultation
In Clyde River (Hamlet) v Petroleum Geo-Services Inc. and Chippewas of the Thames First Nation v Enbridge Pipelines Inc., the Supreme Court of Canada acknowledged that the NEB has the procedural powers to implement consultation and the remedial powers to impose and enforce accommodation measures as well as the requisite technical expertise. The Supreme Court of Canada also acknowledged the Crown’s ability to rely on the NEB’s regulatory assessment process to fulfill its duty to consult. Under the NEB Act and caselaw, it was clear that the NEB was the final decision-maker in relation to this Project.
The NEB found that there was adequate consultation and accommodation for the purpose of the NEB’s decision on the Project. The NEB also found that any potential Project impacts on the rights and interests of affected Indigenous communities were not likely to be significant and would be effectively addressed through conditions and commitments.
The NEB found that approval of this Project was consistent with section 35 of the Constitution Act, 1982 and the Honour of the Crown.
The NEB found that Enbridge adequately and appropriately identified stakeholders and potentially affected landowners, and developed appropriate engagement materials. The NEB found that Enbridge’s design and implementation of consultation activities for the Project were appropriate given the scope and scale of the Project.
Socioeconomic and Environment Matters
The NEB found that the Project was not likely to result in significant adverse environmental or socioeconomic effects. The NEB found that Enbridge planned sufficient standard and site-specific measures to mitigate most of the potential adverse environmental effects identified.
The NEB found that the general design of the Project facilities was appropriate for the intended use, and that the facilities would be constructed in accordance with accepted standards for design, construction and operation.
The NEB was satisfied with the approach Enbridge proposed for crossing the St. Clair River, but noted that the success of horizontal directional drilling (“HDD”) installations for pipeline construction depended on accurate HDD feasibility assessments, proper design and planning, and actual conditions encountered during the execution of the HDD. Therefore, the NEB imposed a condition requiring Enbridge to file a drilling execution plan.
The NEB found that the project was economically feasible and the NEB did not have concerns with Enbridge’s ability to finance the Project.
The NEB found that it was in the public interest to approve Enbridge’s application to construct and operate the Project.