Natural Gas Pipeline Application – Indigenous Consultation – Environmental Matters
Background
On December 15, 2017, Nova Gas Transmission Ltd. (“NGTL”) applied to the National Energy Board (“NEB”) pursuant to section 58 of the National Energy Board Act (“NEB Act”), for authorization to construct and operate 23 kilometres of new pipeline within Clear Hills County, Alberta to transport sweet natural gas (the “Project”).
For the reasons summarized below, the NEB determined that it was in the public interest to approve NGTL’s application to construct and operate the Project.
The NEB Process
On January 5, 2018, the NEB issued notification letters to Indigenous peoples potentially affected by the Project.
On May 4, 2018, the NEB issued its completeness determination, which established a written hearing process and set a 15-month time limit for the NEB to complete its assessment and issue a decision. The NEB simultaneously issued Hearing Order GHW-001-2018 (“Hearing Order”) for the Project.
The NEB notified Natural Resources Canada, Crown-Indigenous Relations and Northern Affairs Canada that the NEB had received the Project application and that Indigenous matters may need to be considered.
Indigenous Consultation
The NEB noted that in Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, the Supreme Court of Canada confirmed that the Crown could rely on a regulatory assessment process to fulfill its duty to consult where the agency has the requisite statutory powers to do so. The NEB was found to generally possess the requisite authorities, in light of its technical expertise, its broad procedural powers to implement consultation and its broad remedial powers to impose and enforce conditions.
As part of the NEB’s assessment process, the applicant, NGTL, was required to make all reasonable efforts to consult with potentially affected Indigenous peoples and to provide information about those consultations to the NEB. This included information on the nature of the interests potentially affected, the concerns Indigenous communities raised and the manner and degree to which those concerns were addressed.
NGTL engaged with the 11 Indigenous communities and heard concerns from the Dene Tha’ First Nation (“DTFN”), the Doig River First Nation (“DRFN”) and, the Tallcree First Nation (“TCFN”) regarding:
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traditional practices and cultural use not being reflected in the application;
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the effectiveness of NGTL’s proposed mitigation measures;
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NGTL’s willingness to consider and incorporate findings from Traditional Use Studies;
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impacts to the use and occupancy of traditional territory and any potential or established Treaty or Indigenous rights; and
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the impact of land disturbance, noise, traffic and pollution from the Project on the spiritual connection to the land.
The NEB was satisfied with the overall design and implementation of NGTL’s Project-specific consultation activities to date. Nevertheless, the NEB imposed Condition 4, which required NGTL to file, for approval, Outstanding Traditional Use Studies/Traditional Knowledge (“TK”) Reports and a description of how the information would be considered and addressed by NGTL. The NEB also imposed Condition 6, requiring NGTL to file an updated Environmental Protection Plan, 14 days prior to commencing construction, indicating how results of Traditional Use Studies and TK reports were considered and incorporated into the Environmental Protection Plan. The NEB stated that NGTL’s outlined mitigation measures, in combination with Conditions 4 and 6 would adequately address the potential impacts to cultural, heritage and traditional land use sites.
Environmental Matters
NGTL prepared an Environmental and Socio-economic Analysis (“ESA”) for the Project in accordance with the NEB Filing Manual and summarized all potential effects, proposed mitigation and predicted residual effects. NGTL filed the ESA with its application, proposing the following mitigation measures regarding the Project’s impact to caribou:
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pipeline routing parallel to existing disturbances for 100% of the pipeline route and use of shared workspace by overlapping existing adjacent disturbances; and
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minimize clearing and construction of the Project within critical timing periods for caribou.
The NEB acknowledged NGTL’s routing of the pipeline along existing linear disturbances to avoid and minimize disturbance to caribou habitat. NGTL’s ESA relies on the Caribou Habitat Restoration and Offset Measures Plan (“CHR & OMP”). The NEB acknowledged DTFN’s concern that NGTL’s ESA does not provide sufficient baseline information to assess the adequacy of mitigation or offsetting required to address the potential impacts on the Project to the Chinchaga herd. However, the NEB found that the baseline information provided by NGTL was sufficient, and NGTL’s ESA methodology was acceptable.
After assessing the overall effects of the Project on the environment, the NEB found that the mitigation proposed and commitments made by NGTL would minimize the environmental effects of the Project. The NEB noted NGTL’s commitment to conduct post-construction environmental monitoring. Post-construction monitoring is key to ensuring that potential adverse effects will be effectively mitigated and where issues are identified, adaptive management is employed to address them.
To ensure that post-construction environmental monitoring is thorough and effective, the NEB imposed Condition 9. Condition 9 sets out requirements for NGTL to implement a post-construction environmental monitoring program and submit Post-Construction Environmental Monitoring Reports. To verify the appropriateness of the restoration implemented, the NEB imposed Condition 10, and Condition 11. Conditions 10 and 11 require NGTL to file, for approval, a Caribou Habitat Restoration Implementation Report and Status Update and a Caribou Habitat Offset Measures Implementation Report.
To ensure that the assumptions NGTL made in its preliminary CHR & OMP were correct, that restoration would be effective and, if not, that adaptive management is implemented, the NEB imposed Condition 12. Condition 12 required NGTL to develop a Caribou Habitat Restoration and Offset Measures Monitoring Program. To assist its oversight of ongoing monitoring, the NEB also imposed Condition 13, which requires NGTL to file, for approval, Caribou Monitoring Reports with the NEB.
Engineering Matters
The NEB uses a risk-informed lifecycle approach to ensure that NEB-regulated facilities and activities are safe and secure from their initial construction through to their abandonment. In consideration of the safety and security of proposed facilities, the NEB assesses whether the applicant has appropriately designed facilities for the properties of the transported product, the range of operating conditions, and the human and natural environment where the facilities would be located. Specific considerations include a company’s approach to engineering design, integrity management, security, emergency preparedness, and health and safety.
When a company designs, constructs, or operates facilities, it must do so in accordance with the NEB Act and its regulations, including the NEB Onshore Pipeline Regulations (OPR), its commitments made during a proceeding, and the terms and conditions the NEB attaches to any approval.
The NEB was satisfied that the general design of the Project is appropriate for the intended use. The NEB is further satisfied that the Project would be designed, located, constructed, installed, and operated in accordance with the OPR. The NEB imposed Condition 2 requiring NGTL to construct, install and operate the Project in accordance with the specifications, standards, and other information referred to in its application, or as otherwise agreed to.
DTFN expressed concerns with respect to the impacts of NGTL’s proposed open-cut technique to fish and fish habitat at the Chinchaga River crossing. DTFN noted their members’ reliance on fish in this area. DTFN stated their preference for a less impactful method of crossing, such as a trenchless technique. NGTL argued that trenchless crossing techniques would necessitate a larger construction footprint and that it had chosen an isolated open-cut crossing to reduce the Project footprint.
The NEB found that open-cut can be an effective technique for the installation of pipelines in sensitive areas. The success of an open-cut installation for pipeline construction depends on proper design and planning, and adaptation to the actual conditions encountered during the execution of the crossing. The NEB accepted NGTL’s view that constructing an open-cut crossing in the winter under frozen conditions will minimize the Project footprint and, therefore is an acceptable technique.
Decision and Order
The NEB determined that it was in the public interest to approve NGTL’s application to construct and operate the Project, pursuant to section 58 of the NEB Act.
