Guidance Notes for Applicants – Applications for Declaration of Significant Discovery and Commercial Discovery – Revised Section 4
Attachment to Board Letter
dated 17 November 2003
Section 4. Processing Applications for Significant and Commercial Discovery Declarations (Application)
1. Following the receipt of an Application, the National Energy Board may delegate the matter to an investigative panel of the NEB, consisting of one or more NEB Members, which will examine the technical merits of the Application.
2. The NEB will notify Indian and Northern Affairs Canada (INAC) or Natural Resources Canada (NRCan) of the Application so that, if appropriate, INAC or NRCan can arrange for the existing licence to remain in force during the examination by the NEB of the Application. The NEB will also seek from INAC or NRCan confirmation of the interest holder(s) of the applied-for lands as well as the identities of the interest holder(s) of adjacent lands.
3. The NEB will issue a Notice of Application (see Appendix A – Sample Notice) as appropriate, to allow persons other than the Applicant to seek status as a Directly Affected Person (DAP) for the purposes of the Application and the Notice of Intended Decision under subsection 28.2(3) of the National Energy Board Act (Act). The Notice of Application will provide persons who consider that they may be directly affected by a NEB decision on the Application with an opportunity to explain why they should be a DAP.
Any submission that may be filed by a potential DAP with the NEB should clearly outline the nature of the information or evidence being relied upon by the potential DAP to support the position that their interests may be directly affected and which could assist the Board in making its technical determination of the areal extent of the applied-for Significant or Commercial Discovery.
These submissions shall be filed with the NEB, with a copy to the Applicant within 30 days following the date of the Notice of Application. The Applicant will have an opportunity to comment on any DAP submissions within 15 days following the above 30 day period. The potential DAP will then have an opportunity to reply within 15 days to any comments made by the Applicant before the NEB investigative panel makes its DAP determination and before the NEB issues a s. 28.2(3) Notice of Intended Decision (see section 4(8) below).
4. Based on the information provided in the Application concerning DAP (see section 5(11) of these Guidelines) and based on the NEB's assessment of the information submitted in response to a Notice of Application, the NEB will decide, on a case-by-case basis, who if anyone beyond the Applicant, is directly affected by the NEB's decision. This may include rights owners and any other person the Board considers may be directly affected by the issuance of a Declaration. The Applicant and other DAPs will be notified of the NEB's DAP decision.
5. The NEB investigative panel will examine the Application. The purpose of this technical review is to determine the existence and the extent of any discovery. The NEB's technical determination involves examination of geophysical records and mapping, the regional and local geology, the petrophysical analysis of the discovery well, the reservoir continuity and quality, and a full analysis of any relevant test data.
6. To facilitate the examination by the NEB, Information Requests may be issued to the Applicant, to supplement or provide clarification on the technical assumptions, analyses and data provided in the Application. Additionally, given the highly technical nature of the evidence provided in the Application, the investigative panel may choose to call, or an applicant may request, a Technical Conference to discuss technical issues that otherwise may not be easily handled through written Information Requests.
7. Subject to paragraph 3, material submitted to the NEB in relation to the Application is subject to section 101 of the Canadian Petroleum Resources Act relating to privileged information or documentation, and the exemptions provided in that section.
8. Once its technical assessment has been completed, the NEB investigative panel will issue a report along with a notice, in accordance with section 28.2(2) of the Act, of the NEB's intention to make a decision (the Notice of Intended Decision or the Notice) to the Applicant and to any person the NEB investigative panel considers to be directly affected by the decision (DAP).
9. The Notice will provide a description of the intended decision, based upon the attached report. The Applicant or any DAP may request a hearing in respect of the intended decision, but the request must be received by the NEB within thirty days after the notice is given.
10. If there are no requests for a hearing, the decision will be made by the NEB investigative panel.
11. If a written request for a hearing is received by the NEB Secretary, the NEB will set the matter down for a hearing. The investigative panel will be discharged and a new panel, consisting of one or more Members, will be struck to consider the Application. The hearing panel would consist of Members who did not participate in the investigative panel.
12. The NEB may issue a Hearing Order to the Applicant and other DAPs in order to establish procedures and deadlines for the hearing process.
13. All persons who requested a hearing may file new evidence. The previous submissions made to the NEB, including the original Application and Information Request responses, form part of the record and need not be resubmitted.
14. At or after the conclusion of the hearing, the NEB will render a decision.
15. If requested by a person who asked for the hearing, the NEB will provide written reasons for the decision.
16. The NEB will notify INAC or NRCan of its decision in order that INAC or NRCan may take relevant steps such as issuing successor rights or amending existing rights.
17. The NEB will issue the description of lands subject to the Significant or Commercial Discovery declaration in the first issue of the NEB publication, Regulatory Agenda.
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