In this decision, the CER considered an application from Many Islands Pipe Lines (Canada) Limited (“MIPL(C)L”) for the Pierceland Supply Project (“Project”). The CER approved the Project.
On 28 August 2019, the Canadian Energy Regulator Act (the “CER Act”) came into force and the National Energy Board (“NEB”) became the CER. Section 36 of the transitional provisions associated with the CER Act states that applications pending before the NEB immediately before the commencement day are to be taken up before the CER and continued in accordance with the National Energy Board Act (“NEB Act”).
MIPL(C)L applied pursuant to section 58 of the NEB Act for an exemption from the provisions of sections 30, 31, and 47 of the NEB Act, the effect of which is to approve the construction and operation of the Project.
The Project would be located on both Crown and freehold land crossing the Alberta/Saskatchewan border. The proposed pipeline route would parallel the existing Alberta Border – Beacon Hill pipeline for the majority of the route where the total land area for the pipeline right-of-way (“ROW”) is 77.639 ha. The new permanent ROW would be 26 m wide. The compressor station would be located on 2.661 ha of leased Saskatchewan provincial Crown land. An access road will also be required and will lease 0.358 ha of Saskatchewan provincial Crown land. Temporary workspace (“TWS”) will be required for the construction of the Project.
MIPL(C)L stated that the purpose of the Project is to meet demand. A supply expansion is required to meet customer requirements and future-dated transportation contracts. Delivery demand growth in northwest Saskatchewan is forecasted to continue for the next five to ten years and declining Saskatchewan gas production is further increasing requirements for Alberta supply imports.
Assessment of the Application
In its original application, MIPL(C)L proposed crossing two unnamed creeks via horizontal direction drilling (“HDD”) and provided preliminary HDD drawings for additional details. Later, in its second supplemental filing, MIPL(C)L provided an HDD Feasibility Report for the two unnamed creeks. MIPL(C)L also proposed using HDD or a trenchless uncased crossing method to cross roads.
MIPL(C)L requested exemption from the provisions of section 47 of the NEB Act, namely the requirement to apply for Leave to Open (“LTO”). MIPL(C)L stated that exemption from this requirement would provide maximum flexibility to MIPL(C)L for timing of construction of the pipeline and compressor station, and the associated tie-ins. Additionally MIPL(C)L requested that if exemption to section 47 of the NEB Act is not granted for the entire Project, that the Project be separated into individual LTO phases, which would support the scheduling of outages needed to minimize their duration and impact to MIPL(C)L’s shipper.
The CER denied MIPL(C)L’s request for exemption from the requirement to apply for LTO pursuant to section 47 of the NEB Act, and reminded MIPL(C)L to make such application to the CER pursuant to section 213 of the CER Act prior to the facilities being placed in operation. The CER explained that, for clarity, MIPL(C)L has the option to apply for LTO in phases as it sees fit and the CER will consider each application separately.
Public Engagement and Land Matters
MIPL(C)L stated that the Project would require the acquisition of approximately 101.4 ha of new permanent land rights. TWS for soil storage, access, and general construction activities would require approximately 42.54 ha of land. The pipeline would be placed in a new 26 m wide ROW, which would parallel the existing Alberta Border – Beacon Hill pipeline for the majority of the route (where possible) as well as Highway 55 in Saskatchewan.
The CER noted that routing decisions involve the consideration of many factors, including environmental, archaeological, and engineering factors, as well as consultation with landowners, provincial governments, municipalities, and Indigenous peoples. The CER indicated it appreciates and acknowledges MIPL(C)L’s efforts to minimize the potential environmental impact of the Project by proposing a route that parallels existing ROWs, and minimizes the taking up of new lands wherever practicable. The CER found that MIPL(C)L’s route selection, land requirements, and land acquisition process are acceptable for the scale and scope of this Project.
The CER was of the view that MIPL(C)L adequately and appropriately identified stakeholders and potentially affected landowners, as well as developed appropriate engagement activities. The CER recognized that MIPL(C)L engaged landowners along the proposed pipeline route and considered their input, resulting in two instances where landowner routing concerns were accommodated.
The CER also noted that MIPL(C)L committed to continuing negotiations with property owners or occupants to resolve issues including after construction of the Project is complete.
Engagement with Indigenous Peoples
MIPL(C)L stated that it identified potentially affected Indigenous communities based on the location of the Project within asserted traditional territories, regional boundaries, and/or areas of interest. MIPL(C)L used desktop research supplemented by its own experience in working with Indigenous communities on other projects in the area as well as feedback from the Alberta Consultation Office. MIPL(C)L also contacted the NEB on January 30, 2019, to request a Traditional Territory Analysis to provide a list of potentially impacted Indigenous communities.
The CER stated that, in contrast to other project applications of a similar nature recently considered, the CER took note of MIPL(C)L’s efforts at engagement and meaningful interaction with Indigenous parties in this proceeding, such as benefits and consultants agreements made, its willingness to amend its standard-form agreements, its willingness to work with Indigenous peoples to develop protocols that identify the rights and responsibilities of Elders and Monitors, and its commitment for involvement of Indigenous monitors during lifecycle stages of the Project. The CER indicated it looks forward to continuous efforts from MIPL(C)L to reduce impacts on the rights and interests of Indigenous peoples.
The CER was of the view that an approval of this Project was consistent with section 35 of the Constitution Act, 1982 and the honour of the Crown.
The Project would involve the construction and operation of approximately 30.3 km of new pipeline and a new compressor station. It would be located in both the Rural Municipality of Beaver River No. 622 (Saskatchewan) and the Municipality District of Bonnyville No. 87 (Alberta) on a mix of private land, Crown land, and road allowances.
The CER assessed the environmental effects of the Project and found that based on the information provided by MIPL(C)L in its application and subsequent filings, and taking into account the mitigation proposed by MIPL(C)L and the conditions imposed by the CER, that residual effects of the Project on the environment were likely to be localized to the Project development areas and reversible in the medium term. Therefore, the CER determined that Project effects on the environment were not likely to be significant.
The CER also considered MIPL(C)L’s cumulative effects assessment and noted that there are existing and proposed projects and activities that have the potential for spatial and temporal interaction of Project effects, and therefore the potential for cumulative effects, including agriculture; energy transmission; oil and gas; industrial; settlement and rural and urban development; and transportation and infrastructure. Although there were possible cumulative effects for several biophysical elements, the CER was of the view that these cumulative interactions and effects are limited to the duration of construction, are fairly localized, and are minor in nature. The CER was of the view that any potential cumulative effects would also be mitigated by MIPL(C)L’s environmental protection and mitigation measures. Therefore, the CER concluded that the Project would not likely result in significant adverse cumulative effects.
The CER was further of the view that a robust post-construction environmental monitoring program would be key to MIPL(C)L ensuring that potential adverse effects of the Project have been effectively mitigated and, where issues are identified post-construction, requiring that MIPL(C)L implements measures to address them. To be satisfied that post-construction environmental monitoring is thorough and the CER directed MIPL(C)L to implement a post-construction environmental monitoring program for a five year period and submit Post-Construction Environmental Monitoring Reports to the CER bi-annually.