ARCHIVED – FAQs on the Jobs, Growth and Long-term Prosperity Act

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The Jobs, Growth and Long-term Prosperity Act, portions of which came into force on July 6, 2012, includes legislative changes to a number of Acts, including the National Energy Board Act. The intent of the new legislation is to support job creation and economic growth while maintaining strong environmental protection.

Below, you will find some information designed to help explain some of the changes.

What are the new legislated time limits for National Energy Board (NEB) applications?

The NEB has always strived for efficiency in our hearing and application processes. These new time limits will maintain this efficiency and enhance certainty and predictability for all parties involved.

The legislation calls for fixed beginning-to-end time limits of 18 months for most NEB applications. This is broken down into 15 months from the date the Board determines an application is complete until the Board completes its assessment with the issuance of a Decision or Recommendation to Governor in Council (GiC). For applications requiring a certificate, from this point, GiC would have three months to make a decision.

With the exception of the Mackenzie Gas Project, which included a parallel Joint Review Panel, all NEB hearings over the last eight years have been completed within 15 months from the issuance of the hearing order to the release of the reasons for decision.

Letters setting out these limits can be found here:

When do legislated time limits come into effect?

Legislated time limits for project reviews are now in effect, including time limits for projects that were already before the Board when the relevant portions of the Jobs, Growth and Long-term Prosperity Act came into force on July 6, 2012.

How will the decision-making process work for major projects?

The NEB will continue to conduct an independent, fair and publically accessible environmental assessment and regulatory review process for all pipeline projects. We will recommend terms and conditions in the public interest.

The legislative changes address the time limits for NEB regulatory assessment for major projects, and provide the GiC with the responsibility to make the go/no go decision for issuing a pipeline certificate.

Previously, the NEB’s decision to issue a certificate for a project was subject to the approval of the GiC. A decision of the Board to deny a certificate was final and not subject to further approval. Now, both approvals and denials of projects must go to the GiC for a decision. The NEB’s report on a project will include conditions to be attached to any certificate issued. The GiC may refer back to the Board its approval or denial or its terms and conditions, but the NEB makes the final decision as to what its recommendation will be and what terms and conditions would apply.

Will the changes stemming from the Jobs, Growth and Long-term Prosperity Act affect the NEB hearing process?

The NEB will continue to conduct its proceedings in an open, fair and impartial manner. The NEB has always strived for efficiency in our hearing processes and these new time limits will not impact our ability to complete the process to the high standards we’ve always maintained.

The NEB will be responsible for carrying out the regulatory review process, conducting environmental assessments, making a recommendation and setting out terms and conditions on major projects.

The key legislative changes address the time limits for the regulatory process and provide the GiC with the responsibility to make the go/no go decision for issuing a pipeline certificate.

How will the NEB decide who can participate in an NEB hearing?

The Board will decide on a case by case basis who is a person that will be considered to be “directly affected”

Will the Board’s role change with respect to Environmental Assessments?

For projects identified by the new Canadian Environmental Assessment Act (CEAA 2012), the NEB will conduct an environmental assessment pursuant to that Act. For projects not identified by the CEAA 2012, the NEB will continue to conduct a federal environmental assessment as a part of its public interest mandate under the National Energy Board Act. We have significant experience in considering potential environmental effects when making our regulatory decisions. Environmental aspects have been addressed in Board decisions under the National Energy Board Act since the early 1970’s. In addition, we have been conducting environmental assessments under the former Canadian Environmental Assessment Act since it came into force in 1995.

The NEB will continue to conduct an independent, fair and publically accessible environmental assessment and regulatory review process for projects under its jurisdiction. We will continue to recommend terms and conditions in the public interest.

With changes to the Fisheries Act, the NEB Act and the Canada Oil and Gas Operations Act (COGOA), the NEB responsibilities will include the oversight of navigable waters and fish habitat related to pipeline and international power line crossings. It will take approximately one year for these changes to be implemented. These changes will be in place by July 6, 2013; within a year following the passing of the relevant portions of the Jobs, Growth and Long-term Prosperity Act.

What are the duties and authorities of the Chair?

The Chair of the NEB will set time limits for project reviews and ensure these time limits are met.

Through the new legislation, the Chair has been provided with a variety of tools to make sure time limits are met and applications are dealt with in a timely manner.

Does the new legislation provide the NEB with additional flexibility with regards to the appointment of Board members?

Yes. Previously the NEB Act restricted the number of temporary Board members to six. The amended NEB Act does not have this restriction. This flexibility means the NEB can hire more temporary members, which will allow it to be more effective in responding to workload pressures and time limits for reviews.

How are pipelines and power lines which cross navigable waters impacted by this Act?

These amendments to the NEB Act and the Canada Oil and Gas Operations Act require the NEB to consider the effects of pipeline and power line crossings of navigable waters. Currently this is a responsibility of Transport Canada under the National Energy Board Act and the Navigable Waters Protection Act. Once these amendments come into effect, the NEB will be the “one window” regulator for energy projects that cross navigable waters.

What is the change to section 112 of the National Energy Board Act?

Section 112 of the NEB Act now includes the option of pursuing prosecution for unauthorized activity, on NEB regulated pipeline rights of way.

What are Administrative Monetary Penalties (AMPs)?

Administrative Monetary Penalties (AMPs) are financial penalties the Board will be able to impose on companies or individuals for non-compliance with the National Energy Board Act, regulations, decisions, permits, orders, licenses or certificate conditions.

The Board's proposed approach is to establish two categories of violations and to set a baseline penalty for each category. The baseline penalty will be determined based on the class of violation and whether the violation is committed by an individual or company.

Some of the details of the AMPs design are described in the amendments to the NEB Act, but other details, such as what activities will be considered violations, will be written in a new regulation.

When will the AMPs regulation be in place?

The regulation will be in place by July 6, 2013, within a year following the passing of the relevant portions of the Jobs, Growth and Long-term Prosperity Act.

[See also: FAQs on the NEB’s Administrative Monetary Penalties]

Is the NEB independent from government?

Yes. The Board’s mandate is set out in the legislative framework enacted by Parliament.

The Board will continue to be responsible for carrying out a fair and independent review process. Under this new legislation, for major projects, the Board will be responsible for making a recommendation and providing terms and conditions on major pipeline projects independent from government. The Board’s expert advice on safe design, construction and operation of pipelines, as well as its comprehensive analysis of any project, will support the recommendation it makes as to whether or not a project is in the public interest. This recommendation, and the Board’s terms and conditions, will be published and provided to the GiC for a final decision.

The Board retains the authority to make decisions on other matters such as Section 58 projects, international power lines, exports and applications related to tolls and tariffs. The Board also regulates the construction, operation and eventual abandonment of energy infrastructure projects under its jurisdiction.

Are there any changes to the way the NEB will deal with an application for a gas export license?

The new legislation contains amendments to the National Energy Board Act which affect the review of gas export license applications.

With these amendments, hearings for gas export licenses are no longer mandatory.

The Act has also been amended to address what the Board may consider when deciding whether to issue a gas export license. When reviewing an application for a license, the Board can only consider whether the quantity to be exported is surplus to Canadian needs, taking into account trends in discovery of the resource. Although the previous version of the NEB Act allowed the Board to consider environmental matters, the provision which gave the Board this ability has been removed. Therefore, the NEB can no longer consider environmental matters in export applications.

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