NEB issues ruling on process for future permitting matters, and reasons for decision on Trans Mountain Expansion Project constitutional question
January 18, 2018 – Calgary – National Energy Board
The National Energy Board (NEB) today announced a process to resolve potential future permitting disputes between Trans Mountain Pipeline ULC (Trans Mountain) and provincial and municipal authorities for the Trans Mountain Expansion Project.
Specifically, the NEB has set out a generic process to consider future requests relating to a Project condition that binds Trans Mountain to its commitment to apply for, or seek variance from, all required provincial and municipal permits and authorizations.
Under this process, it will take approximately three to five weeks to reach a decision from the time a request is filed with the NEB. The full text of the ruling [Filing A89357] is posted on the NEB’s website.
The NEB believes this generic process will provide a measure of certainty regarding the regulatory tools available to resolve permitting disputes or disagreements in limited circumstances where Trans Mountain and provincial and municipal authorities are unable to do so.
The NEB expects all sides to approach permitting processes in good faith. While the Project has been determined to be in the public interest, Trans Mountain is still required to comply with applicable provincial and municipal laws. Trans Mountain is also expected to exercise good Project planning and allow sufficient time to properly engage provinces and municipalities.
The NEB also today released its reasons for issuing Order MO-057-2017 [Filing A88474] on December 7, 2017, which involved a notice of constitutional question. This order declared that Trans Mountain was not required to comply with two sections of the City of Burnaby’s bylaws as it begins building the Trans Mountain Expansion Project.
The sections of the bylaws in question required Trans Mountain to obtain preliminary plan approvals and tree cutting permits for project-related work at Trans Mountain’s Burnaby Terminal, Westridge Marine Terminal, and at a nearby temporary infrastructure site. The full text of the reasons [Filing A89360] is also posted on the NEB’s website.
The National Energy Board is an independent federal regulator of several parts of Canada’s energy industry. It regulates pipelines, energy development and trade in the public interest with safety as its primary concern. For more information on the NEB and its mandate, please visit www.neb-one.gc.ca
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On October 26, 2017 Trans Mountain filed a notice of motion and notice of constitutional question asking the NEB to issue an order declaring that certain sections of the City of Burnaby’s bylaws do not apply to work the company will carry out at its Burnaby Terminal and Westridge Marine Terminal, and its use of a temporary worksite.
As this motion included a notice of a constitutional question, in accordance with section 57 of the Federal Courts Act, it was served on the Attorney General of Canada and all provincial attorneys general. The attorneys general of Alberta, British Columbia and Saskatchewan participated in the hearing.
The Board held a two-day oral hearing in Calgary, AB on November 29, 2017 and December 4, 2017 to consider Trans Mountain’s request. The order was issued on December 7, 2017, with reasons to follow.
Trans Mountain filed a separate motion on November 14, 2017 where it requested that the NEB strike a standing panel and establish a process to deal with future municipal and provincial permitting and authorization disputes.
The NEB received written comments opposing this motion from the Attorney General of British Columbia, the City of Chilliwack, the City of Surrey, Katzie First Nation and the Township of Langley. Comments supporting the motion were received from the Attorney General of Canada and the Province of Alberta.
National Energy Board
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