Transition Binder for Chief Executive Officer

The Canada Energy Regulator – key changes arising from the CER Act

Table of Contents

Canadian Energy Regulator Act

• Canadian Energy Regulator Act, and Impact Assessment Act
• Canada Energy Regulator, established 28 August 2019
• Impact Assessment Agency
• Bill C-69, the journey

Key changes

1. Preamble, Purpose & Mandate
2. More specific (modern) governance roles
3. Categories of projects, and assessments
   • Expanded list of factors to be considered
   • Timelines (predictable, efficient processes)
4. Significantly enhanced Indigenous engagement and participation
5. More inclusive public participation
6. Strengthened safety and environmental protection
7. Other significant new authority

Preamble, Purpose & Mandate

• Significant new contextual guidance
• Preamble reflects Canada’s commitments
  • Safety, security and environmental protection
  • Reconciliation with Indigenous Peoples, UNDRIP
  • Transparent and inclusive processes, early engagement
  • Enhancing Canada’s global competitiveness, predictable and timely decisions, carrying out sound projects
• Tension amongst preambular provisions
• Purpose and Mandate prescribed

More specific (modern) governance roles

• Board of Directors (Chairperson and Vice-Chairperson)
  • governance of the Regulator, including strategic direction and advice
• Commission (Lead Commissioner and Deputy Lead Commissioner)
  • adjudicative functions
• CEO
  • management of day-to-day business and affairs of the Regulator (leading the organization)
• Designated Officers
  • authorized by CER Act and Regulation, to make technical or administrative decisions

Categories of projects, and assessments

• International & interprovincial power lines, largely unchanged
• Small pipeline projects (40km pipeline or less)
  • CER is final decision maker, by exemption Order
• Medium pipeline projects (> 40km pipeline, but not designated)
  • CER makes certificate recommendation to Cabinet
• Large pipeline projects (> 75km of new ROW)
  • “designated” under IA Act, Physical Activities Regulations
  • subject to “integrated review”, led by the IA Agency

Expanded list of factors to be considered

• CER Act prescribes the following, additional factors for project reviews
  • Environmental effects, including cumulative effects
  • Safety and security of persons and the protection of property and the environment
  • Health, social and socio-economic effects, including with respect to intersection of sex and gender with other identity factors (GBA+ analysis)
  • Interests and concerns of Indigenous peoples, including their use of lands and resources for traditional purposes
  • Effects on the rights of Indigenous peoples
  • Extend to which effects hinder or contribute to Canada’s ability to meet its environmental obligations and climate commitments
  • Regional or strategic assessments under the Impact Assessment Act

Timelines (predictable, efficient processes)

• “Predictable and timely” and “efficient” process emphasis (preamble and purpose)
• Pipeline and IPL orders to be issued within 300 days (10 months)
  • shortened from 15 months under NEB Act
• Certificates to be issued within 450 days (15 months)
  • no change in time limit
• Timeouts more limited than in Impact Assessment Act

Significantly enhanced Indigenous engagement and participation

• Board of Directors and Commission, Indigenous representation
• Indigenous Advisory Committee
• Broad authority to establish collaborative processes (Regulator)
• Ministerial arrangements with Indigenous governing bodies
  • authorize Indigenous governing bodies to exercise powers and functions under the CER Act (GiC regulations required)
• Authority to include Indigenous monitors in inspections
• Expanded hearing, engagement and participant funding authority
• Protection of Indigenous knowledge
  • confidential treatment, subject to exceptions (requiring consultation)
• Consideration of effects on Indigenous rights / interests / knowledge
  • must consider adverse effects on Indigenous rights in all decision making
• Preamble reference to UNDRIP (FPIC), reconciliation, renewed nation-to-nation relationships

More inclusive public participation

• “Inclusive” and “efficient” process emphasis (Preamble and Purpose)
• Removal of standing test; “meaningful” public engagement required
• Requirement that any member of the public may make representations on certificate applications
• Expanded participation funding program to facilitate participation in hearings, including steps leading up to hearings
• Alternative Dispute Resolution, a legislated requirement
• Land Matters Advisory Service (LMAS) – centralized, one-window approach to access land-related services

Strengthened safety and environmental protection – Inspection Officers

• More robust inspection officer ordering authority
  • expanded purpose for issuing Orders, express NNC authority
  • new authority to condition, make interim, vary and rescind Orders
• Expanded scope of entry
  • entry to “any place”, including private property
• Enhanced authority on entry
  • to have persons accompany
  • ability to control access, issue directions to any person, etc.
• Duty to assist, now applies to “every person in the place”
• Prohibition on obstruction, false statements
• Designated Officer authorized to designate and take actions regarding a pipeline where company insolvent, or officers cannot be located
• Orphan pipeline account established

Significant new authority

• Adjudication of land compensation disputes
  • no longer private arbitrations, but Commission decision-making
• Potential cost apportionment for facility crossings and ground disturbance (damage prevention)
• Certificate variance, no automatic requirement for GiC approval
• Expanded cost recovery authority, denied or withdrawn applications
• Offshore renewable energy projects and offshore power lines

New CER Act guidance

• Interim Filing Guidance, for expanded factors
• Early Engagement Guide
• Regulations
  • excluding periods from time limits
  • miscellaneous amendments
  • damage prevention, power lines and pipelines

Commission Decisions

• Three proceedings with “continued” NEB Member
• Numerous other applications “taken up by Commission” under NEB Act
• Expeditious Commission decision making (Enbridge, NGTL Tariff)
• Major decisions & recommendations issued by Commission to date

Reflections, thus far

• Extraordinary, cross-organization effort;
• Unexpected timeframes
  • Royal assent, coming into force, appointments
• New energy & authorities, fresh perspectives
• Significant further opportunity

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Date modified:

2021-12-30