On Wednesday, Aug. 28, the National Energy Board (NEB) became the Canada Energy Regulator (CER). For further information please visit our Implementing the Canadian Energy Regulator Act information page
Chapter 2: Hearings for Project Applications
Under the NEB Act, the Board must hold a public hearing for pipeline projects that are more than 40 kilometres in length as well as for abandonment pipeline projects. The Board has discretion to hold a public hearing for pipeline projects that are less than 40 kilometres in length. The purpose of a public hearing is to gather and review relevant information, including information from landowners or participants, which the Board finds is necessary to make its recommendation. Construction and operation of a project cannot begin unless the company has received approval from the Board, met all pre-construction conditions and obtained the necessary approvals from other government departments.
- How can I participate in a hearing?
- Do you have templates I can follow?
- I hear people refer to a project as a "section 52". What is that?
- What lands information is looked at during a certificate hearing?
- What procedure is followed to determine the exact route of an approved pipeline?
- When should I express my concerns about the route of the pipeline?
- What can affect a company's proposed route?
- Does the company have the right to survey my lands or enter my lands for field studies without my consent?
- Where can I find complete information on how to participate in a certificate hearing?
- Is there anyone at the NEB who can help me understand Board process and the steps I need to take to become involved?
- What is a Hearing Order?
- How do I send my information to the NEB?
- Will anyone and everyone have access to my information?
- What is the electronic repository?
- Can I still participate in an NEB process for a project even though I have signed a land agreement with the company?
- Do I need a lawyer to participate in NEB hearings?
- Is the process different for Indigenous groups?
- What if I disagree with the Board's decision?
Depending on the process chosen by the NEB for a project’s assessment, there are typically three ways that individuals or groups may participate in a hearing:
1) Filing a letter of comment - a signed, written statement about the writer’s views regarding an application which may include information to support these views and a description of how the writer is connected to or affected by the project. A letter of comment must be filed before the hearing, as the company and all other parties may refer to it or comment on it during the hearing.
2) Asking to make an oral statement - similar to a letter of comment, but is presented in-person (orally) at a public hearing. Anyone wishing to provide an oral statement must advise the NEB of their intentions in advance of the public hearing.
3) Applying for intervenor status - this is the most involved level of participation. Intervenors may file written evidence, directly receive all documents filed by the company and other intervenors, comment on evidence and ask questions of all parties involved, and make a final argument.
In your application for intervenor status, you must explain why you would like to participate in the hearing and list the specific issues you intend to address at the hearing. The NEB may or may not grant intervenor status to everyone who applies.
Yes, templates that will assist you in the hearing process can be found on the NEB’s website by going to the project page related to the project you are interested in or contacting the Board’s Process Advisor for the project.
Section 52 is a provision in the NEB Act (see Appendix A: Sections of the Act and What They Mean for Landowners). It is also referred to as a certificate hearing. Anyone wanting to construct and operate a pipeline which is more than 40 kilometres long must obtain a certificate by applying for approval under section 52. Under this provision, the Board must decide whether a project is in the public interest. The public interest is inclusive of all Canadians and refers to a balance of economic, environmental, and social interests that change as society’s values and preferences evolve over time. The Board assesses the overall public good a project may create and its potential negative aspects, weighs its various impacts, and makes a recommendation.
The lands information reviewed during a certificate hearing will include:
- general route or corridor location information;
- the location and total area of the lands that will be required for the project, whether on a permanent or temporary basis;
- the methods the company will use to acquire these lands, including how it will notify landowners and other affected people or groups and sample documents the company will use to buy the lands rights it requires; and
- any other information the Board may decide is relevant, such as methods and timing of construction.
After a pipeline is approved and the certificate has been issued, the exact route must then be decided. This process is known as the detailed route approval process and may sometimes include a detailed route hearing. For information on the detailed route approvals process and detailed route hearings, please see Chapter 4 and Chapter 5.
When should I express my concerns about the route of the pipeline?
Landowners are strongly encouraged to express concerns to the company as soon as they are provided with project information so that more time can be devoted to address these issues at the company’s project planning stage. If a landowner has concerns about the project itself or the general pipeline location, these concerns must be made known at the certificate hearing - not at a detailed route hearing.
When a company works on its pipeline plan and design, it needs to make decisions about how and where to build the pipeline. Things such as natural land features, environmentally sensitive areas, soil type, and the location of houses, roads or other infrastructure will have an influence on the route of the pipeline.
Does the company have the right to survey my lands or enter my lands for field studies without my consent?
The NEB Act allows a pipeline company to enter lands to survey the proposed location of a pipeline or to conduct field studies, examinations and other work that is necessary to determine the location of a pipeline. For example, if the company knows that there are sensitive land features in the area where it wants to build its pipeline, it may decide to conduct field studies to see what it could do to protect the land features, or if it should avoid the area altogether. If the company causes any damage to the property as a result of a survey, field study or examination, the company is required to compensate the landowner. For more information on compensation, please see Chapter 7.
For detailed information on the hearing process, please refer to the NEB publication “National Energy Board Hearing Process Handbook” which can be found on our website under “Participation & Lands” and then “The Hearing Process”.
Often the NEB will hold on-line information sessions as well as participation workshops to let people know how they can participate and to answer questions about the process. Information on these on-line sessions, any deadlines for participants and specific information about the process for a certain hearing are found on the Board’s website under the name of the project, in a Hearing Order or by contacting the Board’s Process Advisor assigned to the project.
Is there anyone at the NEB who can help me understand Board process and the steps I need to take to become involved?
You can contact the NEB at any time and speak with a Process Advisor who will answer questions with respect to NEB process and how you can become involved.
What is a Hearing Order?
A Hearing Order provides information on the process the Board will use to conduct the hearing, how parties can participate, and the schedule of the upcoming hearing. The Hearing Order (or another document called a Procedural Update) will usually include details about the date(s), location(s), and time(s) of the hearing, and issues that will be discussed. A Hearing Order can be viewed on the NEB website, and a public notice with the Hearing Order information will usually be published in local newspapers. Companies may also use additional forms of media such as radio or television to advertise hearings.
Providing written information to the NEB can be done by electronic filing (also known as “efiling”) through the NEB website or by faxing or mailing a hard copy. The NEB does not accept any other form of submission although exceptions may be made in certain cases. Specific information on how to file information is included in the Hearing Order.
The NEB maintains a public record of all the information filed in an NEB hearing process. Evidence filed for an application from companies, intervenors and commenters is made available to the public on the NEB website under “Regulatory Documents”. The oral portion of the hearings is also broadcast live on the NEB website, and transcripts from each day of the hearing are available online.
When a landowner or other interested party submits a document to the Board, it is placed in the electronic repository located on the Board's website. Anything filed is a public document and forms an official legal record of the NEB’s proceedings.
If you are an intervenor, all of your evidence (documentation in support of your position) that will be presented at an NEB hearing must be filed in advance of the hearing. Participants to the hearing (the company, intervenor), and anyone else who requests to be kept informed are usually directly provided with notice that evidence is filed and can be accessed on the NEB’s website.
There are some circumstances where certain information may be kept confidential but this requires permission from the Board. Please call the NEB at 1-800-899-1265 for more information.
The NEB uses the Regulatory Documents section of its website to organize all of the documents that are submitted during a hearing regarding a project. This includes the application, any letters the Board will send out regarding process, all of the questions that are asked and the answers provided, anything received from Participants regarding the application, and any documents that are provided as exhibits for the hearing. The repository site for the project will continue to be available even after a project is approved or rejected. Sometimes large files or drawings may only exist in hard copy but a reference to them will be found online in the electronic repository. You might also hear the electronic repository called “REGDOCS”.
Can I still participate in an NEB process for a project even though I have signed a land agreement with the company?
Signing a land acquisition agreement does not exclude a person from participating in an NEB process. However, you may wish to assess whether your participation in an NEB process respects the terms of your land agreement with the company.
You do not need to hire a lawyer to participate in an NEB hearing or any other NEB process. Some people may be more comfortable having a person speak on their behalf, and a request may be made to the Board for this person to be anyone you designate, but it does not have to be a lawyer.
Indigenous groups or individuals may have specific concerns about the effect a proposed project may have on their rights and interests in lands. Companies are expected to contact all potentially impacted Indigenous groups that are in the areas of the project. Indigenous groups may participate in the NEB hearing process using the same participation options described above.
Decisions of the Board are final unless the Board is asked to review and/or vary its decisions under section 21 of the NEB Act and section 44 of the Rules. The Board considers any request for a variance and will communicate its decision to all of the parties who were involved in the initial process. Parties who may not agree with the decision can seek a court appeal pursuant to section 22 of the NEB Act.
A copy of the NEB Act or the Rules can be found on the Board's website or you may request that a copy be mailed to you by contacting the NEB Library. For the Board’s full contact information please see the back cover.
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