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ARCHIVED – Frequently Asked Questions (FAQs) on NEB’s Participation Guidance

The following FAQs explain how the Board has implemented changes to who can participate in the Board’s hearings for pipelines and power lines under the NEB Act. These changes were set out in the National Energy Board Act by the 2012 Jobs, Growth and Long-term Prosperity Act. This approach is used for all applications under the NEB Act for which hearing is held.

A detailed discussion of the creation of the Board’s Participation Framework was published in December 2014, in the Alberta Law Review.

Why did the NEB create this guidance?

This guidance provides transparency on how the Board hears from those who have a legal right to be heard, as well those who have information that the Board may need or want to make its decision, enabling the Board to allow for meaningful public participation in fair and efficient proceedings as it carries out its mandate in the Canadian public interest.

What changes to participation were made in 2012?

In section 55.2, Parliament created two ways by which a person could seek to gain standing(the ability to participate), in an NEB hearing on an application to construct and operate a facility.

Those people who are directly affected must be allowed to participate, and the Board has discretion, or may allow, but is not required to allow, the participation of those people who have relevant information or expertise.

What is the legal basis for standing?

Generally, a person ought to be heard when that person could be impacted by the decision, subject to certain legal restrictions. This is a legal entitlement to be heard. This legal entitlement may be reflected in the NEB Act or other Acts, such as the Canadian Environmental Assessment Act, 2012. Even if legislation is silent, standing to be heard is required by the common law (law that is made by the courts), through the application of the principles of natural justice. The Board is required to follow these principles because it is considered to be a quasi-judicial administrative tribunal (Quasi-judicial means that the Board has decision-making and other powers that are similar to those of a court).

In addition to a legal right to be heard, the Board can also use its discretion to give someone standing if they have relevant information or expertise. A person may have information that a decision-maker needs or wants to make its decision, and, as a result, his or her participation may add value to or assist a tribunal in making its decision. As the master of its own procedure, the Board has discretion to allow these people to participate.

What is natural justice?

Generally, there are two components to the principles of natural justice and fairness. First, a party must have an adequate opportunity to be heard before a decision is made affecting that party’s interest. The second component is that the decision must be made by an independent and impartial decision-maker.

Among other things, the principles of natural justice require that a person be given an adequate opportunity to be heard before a decision is made affecting their interests. There still needs to be a sufficiently direct impact to trigger a natural justice right to participate.

The content of the principles of natural justice and fairness will vary from case to case. Essentially, what is “fair” requires a balance between what is necessary for the effective and efficient performance of public duties, as mandated under an empowering statute, and what is necessary for the protection of the interests of the parties affected.

Is standing the same thing as level of participation?

No. Standing refers to the ability to participate. Level of participation refers to how someone can participate.

To have standing means that you are allowed to make representations to the Board and that the Board will consider this information before making its decision or recommendation on an application. These representations could be oral or only in writing. Typically, participants with standing in a hearing are Commenters, Intervenors, and the company who made the application (Applicant).

Once you have standing, the next step is for the Board to determine how you can participate, or the level of participation that you should be granted. That determination may rely on what the NEB Act says, natural justice considerations, or be a discretionary decision based on any number of factors. Practical or logistical factors may include the type of evidence required by the Board (technical versus Traditional Knowledge as an example), the capabilities of participants, and fairness and efficiency of the proceedings. Number of participants and time limits for the assessment process may also be a factor in the levels of participation available and how much time may be allowed for each Participant.

What did the Board consider when developing the Participation Guidance and criteria?

The Board considered the wording in section 55.2 of the NEB Act and the wording of CEAA 2012. Clear wording about who can participate that is written in any Act will prevail over common law requirements. The Board also looked at the context, purpose and objectives of the NEB Act and CEAA 2012.

Common law principles of natural justice were also used. As noted above, these principles apply to the Board in its exercise of its quasi-judicial functions, such as application assessment.

What is the Section 55.2 test?

The Board will consider whether you are:

  • directly affected or
  • have relevant information or expertise.

You can fall into either or both of these categories.

If you are directly affected, you will be allowed to participate. If you have relevant information or expertise, the Board may allow you to participate.

If the project being considered by the Board is one that that falls under the Canadian Environmental Assessment Act, 2012 is the standing test the same?

No. The wording in the NEB Act and the CEAA 2012 are slightly different.

Under the CEAA 2012, the Board must provide any interested party with an opportunity to participate in the environmental assessment of a project that falls under CEAA 2012. Interested party is defined as a person who, in the Board’s opinion, is directly affected or who has relevant information or expertise.

As a result, for those projects that require a CEAA 2012 environmental assessment, the Board will use the broader standing test set out in CEAA 2012, and will grant standing to those people who are directly affected and to those people who have relevant information or expertise to provide information or comment on the environmental assessment.

Is there guidance for who can participate in other types of hearings?

There are sections of the NEB Act where there is no standing test set out. In those sections, the Board has provided guiding principles for its standing decisions. Since the goal and foundations for standing are the similar for all types of applications, the Board created a similar test to the one in the NEB Act. The Board has called this Non-Statutory Guidance on Participation in NEB Hearings. This guidance, with some exceptions,[1] is intended to be used when section 55.2 does not apply.

The Board will allow you to participate if your interest is sufficiently impacted by the Board’s decision. Standing may also be granted if the Board finds your participation would assist the Board’s decision-making. You can fall into either or both of these categories.

How does the Board decide whether I am sufficiently impacted?

To be sufficiently impacted, you need to demonstrate an interest that is impacted and that the decision on the application would cause a sufficient impact to that interest.

The Board decides on a case-by-case basis who is sufficiently impacted. The Board will consider the nature of your interest, and whether you have specific and detailed interest, rather than a general public interest. Examples of interests that could support participation, depending on the type of application, are commercial, property or other financial interest (including employment); personal use and occupancy of land and resources; or use of land and resources for traditional Aboriginal purposes.

The Board also considers whether the decision on the application causes a sufficient impact on your interest. For example, it looks at whether your interest relates to issues that are relevant to the hearing, the likelihood that the Board’s decision will impact your interest, and whether your interest may be impacted to a sufficient degree.

How does the Board decide whether I can provide assistance to the Board?

The Board considers, on the facts of each case, the source of your knowledge (for example, local, regional, Aboriginal); your qualifications (for example, if you have specialist knowledge and expertise); the extent to which the information relates to the application; and how much your participation will add value to, or assist the Board in making, its decision.

Once I am allowed to participate, can I participate in any way that I want?

No. There are no guaranteed level of procedural rights for a person granted standing.

When you apply to participate, you will identify your preferred method of participating.

Once the Board determines that you are allowed to participate, it will decide how you can participate.

The Board will provide the process and participation rights it decides are appropriate for you to have your representations considered by the Board. In making its decision, the Board must comply with the principles of natural justice and requirements in the NEB Act, or other relevant Acts.

The process and participation rights given to a hearing participant will depend on the circumstances. An oral portion of a hearing, with cross-examination and oral final argument, is not always required for every hearing. Some hearings will be conducted entirely in writing.

If I am granted standing and participation rights at the highest level (Intervenor), do I have to participate fully in all steps?

No. You are provided the opportunity to participate, but you are not required to do so. For example, if you are allowed to participate and granted Intervenor status, you do not have to file written evidence, ask questions or provide final arguments, but you have the opportunity to do so. If you are not planning to do any of these things, it may be better for you to ask to be a Commenter. Being an active Intervenor requires a commitment of time and effort.

If you decide to exercise those participation rights, you must also fulfill the responsibilities that are associated with those rights. For example, if you decide to file written evidence, it is your responsibility to serve (send a copy of) that evidence to all the other parties by the deadline set by the Board.

If you have questions on the CER hearing process or need help about a specific hearing, please contact the CER at 1-800-899-1265 and ask to speak to a process advisor.

For more information, please see the Hearing Process Handbook.

[1] For example, detailed route approval hearings would not follow this test, as there is a legislated standing test and process set out in sections 34 to 39.

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