On 1 June 2020, NOVA Gas Transmission Ltd. (“NGTL”) filed its application for permission to construct and operate the West Path Delivery 2022 (the “Project”), (the “Application”). NGTL requested an exemption from the provisions of paragraph 180(1)(a) and Section 198 of the Canadian Energy Regulator Act (“CER Act”) for the Project, as well as exemption from the requirements of paragraph 180(1)(b) and subsection 213(1) of the CER Act to obtain leave to open (“LTO”) prior to installing tie-in assemblies on the pipeline components of the Project and to put the meter station modifications component of the Project into service.
The CER considered submissions from interested parties, including Environment and Climate Change Canada, O’Chiese First Nation (“OCFN”), and Stoney Nakoda Nation (“SNN”). In this decision, the CER found it to be in the public interest to grant the requested relief and to approve the application.
Project Overview and Process
NGTL requested permission to construct and operate two non-contiguous pipeline loop sections of 1219 mm outside diameter pipe Nominal Pipe Size (“NPS”) 48 natural gas pipeline that will loop NGTL’s existing Edson Mainline Loop No. 4 and NGTL’s existing Western Alberta System (“WAS”) Mainline Loop No. 2; and expansion of NGTL’s existing Alberta British Columbia Border Meter Station (ABC Border MS) (No. 1 and No. 2). The two pipeline sections are the 18 kilometers (“km”) Edson Mainline Loop No. 4 – Raven River Section (“Raven River Section”) near Sundre, Alberta and the 5 km WAS Mainline Loop No. 2 Alberta British Columbia Section (“ABC Section”) near Coleman, Alberta.
The purpose of the Project is to increase the NGTL system capacity to meet contractual obligations for transportation and delivery of gas on the NGTL system to the ABC Border Meter Station.
The Assessment of the Application
NGTL stated that the Project is located on Crown and freehold lands and consists of two pipe sections, the Raven River Section and the ABC Section. The Project also includes the ABC Border MS Expansion. The Raven River Section consists of approximately 18 km of NPS 48 pipe and crosses mainly Crown land. For approximately 79% of the route, the pipeline will parallel existing disturbances. In this section, the acquisition of around 49.3 hectares (“ha”) of new land would be required. The ABC Section consists of 5 km of NPS 48 outside pipe and would cross 62 per cent freehold land. For approximately 90 per cent of the route, the pipeline would parallel existing disturbances.
The construction ROW will be a minimum of 32 m wide with additional temporary work space (“TWS“) of variable widths at staging areas, side bends, crossings, and grading. NGTL indicated it would utilize existing NGTL land rights to minimize the permanent ROW.
The CER recognized NGTL’s efforts to minimize potential environmental impacts of the Project and to minimize the need for new land where practicable. It found the anticipated requirements for both temporary and permanent land rights to be appropriate for safe and efficient construction and operation. The CER found that necessary land rights acquisitions by NGTL will meet the requirements of Section 321 to 323 of the CER Act. NGTL’s land acquisition process for TWS and third-party consent and the process for the acquisition of both permanent and temporary lands is expected to be completed in late 2021. The CER found that land matters had been addressed appropriately.
NGTL’s Engagement with Indigenous Peoples
NGTL initially identified potentially affected Indigenous peoples based on the location of the project within known or associated territories, regional boundaries and areas of interest. The initial identification was compiled through research, past projects and experience. NGTL had later also contacted the CER to request the preliminary list of potentially impacted Indigenous peoples for the Project.
Indigenous peoples expressed general Project-related concerns to NGTL, including:
challenges with the deadline to provide feedback and responses;
timing of field studies;
lack of capacity funding to participate in a review; and
COVID-19 pandemic challenges.
The CER indicated that the engagement efforts need to be considered in the context of the expectations set out in the Filing Manual. NGTL is expected to undertake engagement activities in accordance with the principles of meaningful engagement. The CER found that NGTL appropriately identified potentially impacted Indigenous peoples and that all potentially impacted Indigenous peoples had been notified and given the opportunity to comment on the Project. The CER noted that NGTL offered capacity funding to potentially affected Indigenous peoples and that NGTL had committed to continue engagement activities during all Project phases. The CER was generally satisfied that NGTL addressed the guidance and requirements outlined in the Filing Manual.
Effects on the Rights of the Indigenous Peoples of Canada
Project components in the Raven River Section are located within the boundaries of Treaty 6, within the areas of interest of 18 potentially affected Indigenous peoples. The ABC Section is located in the boundaries of Treaty 7 and is also within the areas of interest of 19 potentially affected Indigenous peoples. Additionally, NGTL noted that the ABC Border MS Expansion is located within the historic boundaries of Treaty 7 and is also within the areas of interest of 19 potentially affected Indigenous peoples, however, this portion of land is freehold land owned by NGTL.
NGTL submitted that it had taken various steps to engage with potentially affected Indigenous peoples to gather traditional knowledge and information regarding Indigenous and Treaty rights and traditional land and resources use (“TLRU”) activities and how these are exercised or practiced in the Project area.
NGTL confirmed that the Project has the potential to interact with the rights of the Indigenous peoples of Canada recognized and affirmed by Section 35 of the Constitution Act, 1982. NGTL stated that interactions might occur during the construction of the Raven River Section and ABC Section as a result of various construction or construction-related activities. The potential effects of the Project could impact how and where Indigenous groups could exercise their TLRU and how they may be able to access the resources. NGTL provided mitigation measures for the Raven River and ABC Sections that would limit the impact of the Project by marking sensitive areas for protection and educating all workers about cultural awareness and sensitivity. NGTL would further supply the Indigenous peoples with extensive information about the Project and its construction. NGTL would further limit authorized access to a minimum and discourage unauthorized access. NGTL would further undertake ongoing engagement with potentially affected Indigenous peoples.
NGTL confirmed that while residual effects of the Raven River and ABC Sections on the exercise or practice of Indigenous and Treaty rights are likely to occur, the overall degree to which the Project component may result in residual adverse effects on the exercise or practice of Indigenous and Treaty rights in both sections’ Local Assessment Area (“LAA”) is reduced taking into account NGTL’s commitment to mitigation and enhancement measures, along with ongoing engagement through the construction and operating life for both the Raven River and ABC Sections.
The CER noted that it has the technical expertise and mandate to consider and address project impacts, including those affecting the rights and interests of Indigenous peoples. In its evaluation of the consultation and accommodation, the CER considered all project-specific details and submissions.
Based, in part on factors such as NGTL’s consultation with Indigenous peoples for the Project, notice and sufficiency of information about the Project being provided to Indigenous peoples, the evaluation process for the Project, and participation opportunities within that process, the CER found there to have been adequate consultation and accommodation. The CER acknowledged NGTL’s efforts and measures to reduce impacts on the exercise of Indigenous and Treaty rights by designing its route to parallel existing disturbances wherever feasible. The CER also found that opportunities provided by NGTL, including providing various detailed information such as Project maps, as well as offering engagement capacity funding agreements, facilitating site visits and traditional knowledge studies with interested Indigenous peoples, and responding to issues raised, provided potentially affected Indigenous peoples with reasonable opportunity to identify any concerns.
As NGTL had entered into agreements with some potentially impacted Indigenous peoples to conduct community-directed Indigenous knowledge studies for the Project and that some studies were still outstanding, the CER imposed Condition 6 to ensure that the revisions necessitated by the studies are properly incorporated into the environmental protection plan (“EPP”). The CER also imposed Condition 10, requiring a commitment tracking table, and Condition 13, regarding Post-Construction Monitoring Reports, to enhance transparency and further minimize impacts.
The CER noted its understanding that NGTL’s commitment to mitigation and enhancement measures would diminish the degree to which the Project components may result in residual adverse effects on the exercise or practice of Indigenous and Treaty rights. However, to further enhance transparency, the CER imposed Condition 7 regarding an Indigenous peoples employment, procurement and contracting plan. Condition 12, regarding Indigenous peoples’ employment, contracting and procurement reporting, was also imposed.
Following consideration of all evidence submitted, the CER was satisfied that its decision is consistent with subsection 35(1) of the Constitution Act, 1982.
Effects on the Rights of O’Chiese First Nation
The CER found that NGTL’s mitigation measures combined with NGTL’s Cultural Resource Discovery Contingency Plan and the imposed conditions establish reasonable layers of protection for previously identified and unidentified cultural sites. While the CER reviewed all submitted information and efforts made by NGTL to engage and collaborate with OCFN, it imposed conditions 5, 8 and 10 to further help identify and avoid cultural sites.
The CER noted NGTL’s commitment to updating the project-specific EPP with the additional mitigation required based on the results of surveys. In order to ensure that the additional site-specific mitigation measures identified from the 2020 field surveys, as well as the consultation with the responsible regulators, is incorporated into the EPP, the CER imposed Condition 4 for an Updated EPP.
The CER noted NGTL’s commitment to conduct post-construction monitoring and emphasized the importance of a post-construction environmental monitoring program for the mitigation of potential adverse effects. To be satisfied that post-construction environmental monitoring is thorough and effective, the CER imposed Condition 13 requiring NGTL 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. It found that with the implementation of NGTL’s environmental protection procedures and mitigation and the conditions imposed by the CER, the Project is not likely to cause significant adverse environmental effects.