Public concerned about NEB’s mandate and about being heard at hearings: review panellist

Former Canadian Energy Pipeline Association CEO Brenda Kenny is among the five panelists hearing from the public on overhauling the National Energy Board. Image: Natural Resources Canada

The National Energy Board (NEB) is broken. So say First Nations and environmentalists unhappy with the NEB’s recent approval of the Trans Mountain pipeline expansion. The Trudeau government agrees and is currently seeking input on how to overhaul it.

A five-person expert panel on modernizing the NEB was in Vancouver this month for two days to hear from the public on how the energy regulatory body should be reformed.

Brenda Kenny, former CEO of the Canadian Energy Pipeline Association and one of the panellists, spoke to Business in Vancouver about the ongoing hearings and what the panel has heard to date.

Changes were made in 2012 to both the NEB and the Canadian Environmental Assessment Agency to eliminate duplication of provincial processes and to shorten decision timelines. Why is this latest overhaul needed?

The NEB was enacted in 1959. The regulatory components in and around that act have moved with time, but relatively little has changed otherwise.

Vancouver was the third city you have visited. What has the turnout been like?

We’ve also been to Saskatoon and Toronto. It’s been good and growing. I think the turnout in Vancouver is in the order of 50 or 60 people.

Day 2 of the hearings focused solely on First Nations issues. Why was that?

Anyone can attend, so none of the sessions are closed to any individuals, but the topic of indigenous interests and addressing, for example, the United Nations Declaration on the Rights of Indigenous Peoples, as well as the overall rights, is one of the mandate areas for our group, and we wanted to allow special time to focus on that very important issue.

If you had to sum it up, what are the most common complaints you have heard to date?

With the indigenous interests, obviously rights recognition has been a recurring theme. Another recurring theme … [is that] when you have large public hearings, they can be fairly rigid and certainly [there are] questions and concerns about who gets to be heard. … I think there’s a real concern – just the ability to comment and interact.

One of the complaints expressed over the Trans Mountain pipeline hearings was that no cross-examination of Kinder Morgan was allowed. How can anyone test evidence given without an opportunity to interrogate it?

That certainly is something that we’ve heard, as well as the breadth of a variety of perspectives on evidence, and I think, centrally, cross-examination invites that adjudicative lens.

Another complaint was that climate change impacts are not considered when a pipeline is being considered. It was just not part of the NEB mandate.

We’re certainly hearing about that. And related to it is, whereas a tightly adjudicated process starts with a blank page and evidence is filed and fills the docket, a lot of what we’re hearing is, 'Well, gosh, what about the policy framework? What about the climate commitments? Don’t those kind of frame the entry point if you will at looking at a project?'

Concerns were also expressed about political influence, including who gets appointed to the NEB. Are there ways to address that concern?

"We haven’t honestly heard too many comments yet precisely about how appointments are made, but it would be fair to say that, in general, more transparency to the guiding principles, to the expected capacities and to those appointments will be expected.

Are you hearing from industry at all at these hearings?

The majority of people are interested and concerned citizens, [non-governmental organizations] and indigenous groups, but there is some industry. We did have a presentation that was given by [the Canadian Association of Petroleum Producers] in Saskatoon.

The NEB’s mandate is to evaluate things like interprovincial pipelines and transmission lines. Some might wonder why we even need the NEB. Why not just have an environmental review?

When you look at the mandate and the full life cycle for safety and environmental protection, it obviously goes well beyond EA [environmental assessment]. The EA is often a very crucial planning tool, but it’s not necessarily contemplated to be able to cover 80 years of operations and planning for eventual retirement, and land acquisition and emergency response and technical changes, technical innovations for pipe inspection, and the list goes on and on.

--Business in Vancouver

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