Jurisdiction over Coastal GasLink Pipeline
The Project is an approximately 670-kilometre-long, 48-inch diameter natural gas pipeline located wholly within the Province of British Columbia (BC). It would connect to a proposed liquefied natural gas (LNG) facility near Kitimat (LNG Terminal) from which LNG would be exported. The Project was authorized and is currently regulated by the British Columbia Oil and Gas Commission (BCOGC). The Project, proposed by Coastal GasLink, has not yet been constructed.
On 30 July 2018, the National Energy Board (Board) received an application [Filing A93296] from Mr. Michael Sawyer, requesting that the Board:
- pursuant to subsection 12(1) of the National Energy Board Act (NEB Act), determine and issue a declaratory order that the Project is properly within federal jurisdiction and subject to regulation by the Board;
- pursuant to section 57 of the Federal Courts Act, issue a Notice of Constitutional Question in respect of the requested declaratory order; and
- in the alternative, refer the question of jurisdiction over the Project to the Federal Court of Appeal pursuant to subsection 18.3(1) and section 28 of the Federal Courts Act.
After hearing arguments from both sides, on 22 October 2018, the Board issued a letter [Filing A95030] in which it determined that there is a prima facie case that the Project may form part of a federal undertaking and could be subject to regulation under the NEB Act.
This prima facie decision is not a determination (nor does it suggest a leaning by the Board one way or the other) that the Project is under federal jurisdiction and regulated by the NEB. Once the Board’s further process is held, and if the Board determines that the Project is federally and NEB-regulated, the question of whether the Project is in the present and future public convenience and necessity under section 52 of the NEB Act would be addressed in a subsequent proceeding.
The main issue in this proceeding is the question of whether the Project properly falls under provincial or federal jurisdiction; more specifically, whether the Project forms part of a federal work or undertaking under paragraph 92(10)(a) of the Constitution Act, 1867. This proceeding is not about whether to approve the Project, or whether it is in the public interest. As such, the Board will not consider issues that are typically relevant to a determination of whether to approve a project application. This includes issues such as the economic benefits of the Project and the impact of the Project on any other rights and interests.>
The decision of the Board following this hearing will not in itself allow for the construction or operation of the Project. Rather if, following this hearing, the Board determines that it ought to take jurisdiction of the Project, it would require a separate application and hold a separate hearing to determine whether to approve the Project. Project-specific issues would be considered at that time. The Board will similarly not consider evidence on the sufficiency of the provincial process, including any consultation that has or could be undertaken under that regulatory scheme. The Board is not the appropriate forum to review a decision made by a provincial regulator or its overall regulatory scheme, and this evidence would have no bearing on the specific legal issue before the Board in this hearing.
The Board has determined that the process set out below will allow it to obtain the information it needs to complete its review of the jurisdictional issue before the Board in this proceeding, as set out in the Board’s letter on standing, dated 10 December, 2018.
Summary of steps and deadlines:
|Date/deadline||Event / step|
|28 January 2019||Additional written evidence of CGL|
|15 February 2019||Additional written of Intervenors|
|26 February 2019||All participants may file information request to other participants who submitted evidence.|
|12 March 2019||All participants must respond to information requests addressed to them|
|19 March 2019||Written reply evidence of CGL|
|TBD||Final oral argument and reply of CGL and intervenors|
All deadlines for filings are noon, Calgary time, on the indicated date.
For the latest filing regarding this Project, please use this link [Folder 3724164].
For media inquiries, please contact:
Media Relations Team
Canada Energy Regulator
Telephone (toll free): 1-800-899-1265
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