Canada Gazette, Part I, Volume 155, Number 19: ORDERS IN COUNCIL

May 8, 2021

DEPARTMENT OF NATURAL RESOURCES

NATIONAL ENERGY BOARD ACT

Order — Certificate of Public Convenience and Necessity GC-131 to NOVA Gas Transmission Ltd. in respect of the construction and operation of the NGTL North Corridor Expansion Project

P.C. 2021-362 April 30, 2021

Whereas, on January 8, 2019, NOVA Gas Transmission Ltd. (“NGTL”) submitted a project description to the National Energy Board (“Board”) indicating its intention to apply, pursuant to section 52 of the National Energy Board Act (“NEB Act”) for a certificate of public convenience and necessity in respect of the proposed construction and operation of the North Corridor Expansion Project (“Project”) in Alberta, consisting of 81 kilometers of new natural gas pipeline and associated facilities, for which the application was submitted to the Board on April 4, 2019;

Whereas, as a responsible authority under the Canadian Environmental Assessment Act, 2012 (“CEAA, 2012”), the Board was required to conduct an environmental assessment of the Project;

Whereas, in January 2016, the Minister of Natural Resources and the Minister of the Environment announced interim measures (“Interim Measures”) to be applied to major project reviews;

Whereas, on March 21, 2019, Canada wrote to 24 Indigenous groups potentially impacted by the Project confirming its general approach to Crown consultations and its intention to rely on the proceedings of the Board to fulfil the legal duty to consult, to the extent possible, and made its consultation approach publicly available on the Board website on May 31, 2019;

Whereas, on May 31, 2019, the Board issued a Notice of Public Hearing and Application to Participate, inviting interested parties, including potentially impacted Indigenous groups, to apply to participate in the proceedings for the Project, resulting in 12 Indigenous groups applying for and being granted intervenor status for the proceedings, including 7 Indigenous groups who shared oral Indigenous knowledge;

Whereas, pursuant to subsection 79(1) of the Species at Risk Act (“SARA”), the Minister of the Environment was notified, on June 12, 2019, that certain species listed under Schedule 1 of SARA and their critical habitat are potentially affected by the Project;

Whereas, having determined that NGTL's application was complete, the Board issued Hearing Order GH-002-2019 on August 26, 2019;

Whereas, on August 28, 2019, the Canadian Energy Regulator Act and Impact Assessment Act (“IA Act”) came into force and the NEB Act and CEAA, 2012 were repealed;

Whereas, as of that date, the Project was an application pending before the Board that, in accordance with section 36 of An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, was to be taken up before the Commission of the Canadian Energy Regulator (“Commission”) and continued in accordance with the NEB Act as it read immediately before its repeal;

Whereas the Project was a designated project that was subject to an environmental assessment by the Board that was commenced under CEAA, 2012 and that, in accordance with section 182.1 of the IA Act, was continued under CEAA, 2012 as if that Act had not been repealed;

Whereas, from February 3 to 6, 2020, the Commission held Oral Indigenous Knowledge Sessions in Peace River, Alberta, to assist the Commission in assessing the Project in recognition that Indigenous peoples share their knowledge and lessons through an oral tradition from generation to generation;

Whereas the 12 Indigenous group intervenors were awarded participant funding by the Commission to support participation in the hearing process;

Whereas, on September 3, 2020, having completed the hearing, reviewed NGTL's application and conducted an environmental assessment of the Project, and having considered the impacts on species at risk and their critical habitat, the Commission submitted its report on the Project entitled Canada Energy Regulator Report — NOVA Gas Transmission Ltd. — GH-002-2019 (the “Commission's Report”) to the Minister of Natural Resources, pursuant to section 29 of the CEAA, 2012 and section 52 of the NEB Act;

Whereas the Commission's Report consists of the recommendation to the Governor in Council and the findings and reasons of the Commission, the conditions that would apply to a certificate of public convenience and necessity if the Project were approved and the conditions that would apply to a section 58 order of the NEB Act if the Project were approved;

Whereas the Commission is of the view that the benefits of the Project are considerable and would be realized throughout the life of the Project, including increased access to diverse markets for Canadian natural gas, supporting the growing demand for gas-fired electricity generation as part of the transition from coal to natural gas within the electricity generation sector in Alberta and Saskatchewan, maintaining access to natural gas supplies for diverse Canadian consumers and support for economic development through the creation of jobs in communities and businesses across Canada, direct spending on pipeline and construction materials in Canada and the considerable revenues to various levels of government;

Whereas the Commission is also of the view that the Project carries risks, including the burdens of adverse effects that are likely to be caused by increased disturbance to species at risk and their critical habitat, including the woodland caribou and their critical habitat (Red Earth and Chinchaga caribou ranges) and potential adverse effects on Indigenous peoples including lasting cultural implications stemming from potential cumulative effects, impacts on the ability of Indigenous peoples to pass on intergenerational knowledge, limitations on access for traditional users within the Project area during active construction and potential operations and maintenance activities and potential negative effects on the health and well-being of Indigenous peoples and Project workers;

Whereas, pursuant to section 52 of the NEB Act, the Commission concludes, recognizing that the benefits and burdens are never distributed evenly across the country, that the Project is and will be required by present and future public convenience and necessity and is in the public interest and recommends that the Administrator in Council approve the Project by directing the issuance of a certificate of public convenience and necessity to NGTL for the construction and operation of the Project, subject to 34 conditions as set out in Appendix I of the Commission's Report;

Whereas the Commission concluded that, with the implementation of NGTL's environmental protection procedures and mitigation measures and the conditions set out in Appendix I of the Commission's Report, the Project is not likely to cause significant adverse environmental effects under the CEAA, 2012;

Whereas the Commission also considered the requirements of sections 77 and 79 of SARA and proposed several conditions to mitigate, avoid or lessen adverse impacts of the Project on the species at risk and their critical habitat, including a revised caribou habitat restoration and offset measures plan;

Whereas, having evaluated the sufficiency of NGTL's consultation with Indigenous peoples, the Commission is of the view that NGTL's design and implementation of Project-specific Indigenous engagement activities are appropriate for the scope and scale of the Project and that all Indigenous communities potentially affected by the Project were provided with sufficient information and opportunities to make their views about the Project known to NGTL and to the Commission;

Whereas the Commission considered the views and concerns of Indigenous peoples participating in the hearing, the potential impacts on the rights and interests of Indigenous peoples and proposed measures to avoid or mitigate those impacts, including offering Indigenous intervenors a fair and meaningful opportunity to participate, including through the use of oral Indigenous knowledge;

Whereas, on October 28, 2020, the Crown held an information session at which the Canadian Energy Regulator, NGTL, the Department of the Environment and 15 Indigenous groups were in attendance;

Whereas by Order in Council P.C. 2020-962 of November 30, 2020, the Governor in Council extended the time limit to render its decision to May 3, 2021 in consideration of the impact of the coronavirus disease 2019 (COVID-19) on the ability of Canada and Indigenous groups to continue the consultation process;

Whereas, throughout the Crown consultation process, Canada engaged with 22 Indigenous groups with whom the Crown had a duty to consult, and 2 additional groups as a matter of policy, through more than 39 meetings, and 20 Indigenous groups were provided funding to participate in Crown consultations;

Whereas, through Canada's Crown consultation report entitled Crown Consultation and Accommodation Report, the Administrator in Council has assessed the consultation and engagement efforts aimed at identifying and, where appropriate, addressing Project-related concerns and potential impacts on Indigenous interests, including established and asserted Aboriginal or treaty rights recognized in section 35 of the Constitution Act, 1982, raised by Indigenous groups during the consultation process, with the view to determine whether Canada has fulfilled its duty to consult;

Whereas, in the 2018 Tsleil-Waututh Nation decision, the Federal Court of Appeal noted that when considering whether Canada has fulfilled its duty to consult, the Governor in Council necessarily has the power to impose conditions on any certificate of public convenience and necessity it directs the Commission to issue in order to address impacts on Aboriginal or treaty rights recognized in section 35 of the Constitution Act, 1982;

Whereas, in response to Project-related concerns and potential impacts on established and asserted Aboriginal or treaty rights, raised by Indigenous groups and in response to proposals from Indigenous groups, and seeking to further accommodate outstanding Indigenous concerns raised during Crown consultations, and consistent with the Government's commitment to reconciliation with Indigenous peoples, the Administrator in Council is of the opinion that the addition to and amendment of the conditions set out in Appendix I of the Commission's Report, in the manner set out in the annexed schedule, is appropriate;

Whereas the Administrator in Council, having considered Indigenous concerns regarding the impacts of the Project on Indigenous interests, including rights recognized in section 35 of the Constitution Act, 1982 as identified in the Crown Consultation and Accommodation Report, independent submissions by certain Indigenous groups and the further accommodations provided, is satisfied that the Crown consultation process undertaken offered meaningful dialogue with Indigenous groups consulted on the Project, has provided responses and, where appropriate, reasonable accommodations to address potential impacts on section 35 Aboriginal or treaty rights, including by adding to or amending the conditions set out in Appendix I of the Commission's Report, and upholds the honour of the Crown;

And whereas the Administrator in Council, having assessed the Project in accordance with the Interim Measures and considered the Commission's views and recommendations accepts that the Project, if implemented in accordance with the conditions as set out in Appendix I of the Commission's Report, as those conditions are added to or amended as set out in the annexed schedule to address potential impacts on section 35 Aboriginal or treaty rights, is required by the present and future public convenience and necessity and is in the Canadian public interest under the NEB Act, and accepts that the Project is not likely to cause significant adverse environmental effects under the CEAA, 2012;

Therefore, His Excellency the Administrator of the Government of Canada in Council, on the recommendation of the Minister of Natural Resources,

Schedule I to the Order in Council
NOVA GAS TRANSMISSION LIMITED (NGTL) NORTH CORRIDOR EXPANSION PROJECT - CONDITION AMENDMENTS & NEW CONDITIONS

Amendments and additions to the Canada Energy Regulator conditions are bolded. Where the original text of the conditions has been deleted, this is indicated in square brackets.

Condition 35: Support for Indigenous Groups to Review NGTL Filings Related to Conditions

Upon request, NGTL shall offer funding to Indigenous peoples to support their review of NGTL's filings related to conditions.

Condition 36: Indigenous Working Group for the Chinchaga and Red Earth Caribou Ranges

For the purpose of informing the planning and implementation of caribou habitat restoration, offsets, and monitoring, and for the development of other filings relating to caribou required under Conditions 30, 31, 32, and 33, including ensuring the collection and incorporation of caribou-specific Indigenous knowledge, NGTL must seek to establish an Indigenous Working Group (IWG) for the Chinchaga and Red Earth Caribou Ranges with any interested Indigenous groups who are potentially affected by the Project and who express an interest in participating.

For clarification, this plan is not required to be filed prior to the commencement of construction nor are any of the conditions that require filings for approval prior to construction contingent upon the filing of this plan.

Condition 37: Revised Caribou Habitat Restoration and Offset Measures Plan (CHR&OMP)

Condition 30: Caribou Habitat Restoration Implementation Report and Status Update

Condition 31: Caribou Habitat Offset Measures Implementation Report

Condition 32: Caribou Habitat Restoration and Offset Measures Monitoring Program

Condition 33: Caribou Monitoring Reports

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal and objectives

This Order in Council is required pursuant to section 54 of the National Energy Board Act (NEB Act) to direct the Canada Energy Regulator (CER) to issue a Certificate of Public Convenience and Necessity (Certificate) to NOVA Gas Transmission Limited (NGTL) for the North Corridor Expansion Project (the Project) and to issue a decision statement pursuant to section 31 of the Canadian Environmental Assessment Act, 2012 (CEAA, 2012).

This Project would expand the existing NGTL system, a natural gas delivery system that spans much of Alberta and parts of northeast British Columbia, in order to alleviate capacity constraints and help producers get their product to market. The Project also supports the Government of Canada's commitment to transition conventional coal-fired electricity generation units to natural gas, and supports the evolution of Canada's natural gas industry, while taking important environmental, health, and Indigenous considerations into account.

Background

On April 4, 2019, NGTL applied to the National Energy Board under section 52 of the NEB Act, requesting that a Certificate be issued for the Project. NGTL also applied for certain approvals under section 58 of the NEB Act that do not require approval by the Governor in Council (GIC). For a Certificate to be issued, the GIC must first, by Order in Council (OIC), direct the Commission to issue the Certificate after it has taken into consideration the Commission's review of the project.

During the Commission's review process, Bill C-69 received royal assent. As a result, on August 28, 2019, the NEB Act was replaced by the Canadian Energy Regulator Act (CER Act) and the CEAA, 2012 by the Impact Assessment Act (IA Act).

Pursuant to section 36 of the transitional provisions of the CER Act, the Project application was continued under the NEB Act. Pursuant to section 182.1 of the IA Act, the environmental assessment was continued under the CEAA, 2012.

The Project is a “designated project” pursuant to section 2(1) of the CEAA, 2012, for which the Commission of the CER is the responsible authority (RA). Accordingly, the Commission is required to conduct an environmental assessment (EA) for the Project, ensure that Canadians have the opportunity to participate in the EA, and include the EA in a report on the Project.

The Commission of the CER is responsible for the review of the Project application. After concluding its hearing, the Commission is required to issue a recommendation report to the Minister of Natural Resources (the Minister), who is authorized to make a recommendation to the GIC as to whether the Commission should be directed to issue a Certificate for the Project.

Throughout this note, for consistency and simplicity, any action taken by the regulator during the review process will be described as being taken by the Commission of the CER, whether the action occurred prior to or after the coming-into-force of the CER Act.

Project background

The $632 million Project consists of the construction and operation of approximately 81 km of new natural gas pipeline in northwestern Alberta, in three separate segments; plus associated valves and pipeline tie-ins; and one compressor station. The Project will increase the capacity of the existing NGTL System by “looping” (i.e. interconnecting new segments of pipe to the existing system).

NGTL has stated that approximately 95% (77 km) of the 81 km of new pipeline would be contiguous with existing NGTL pipeline or other linear disturbances and 4 km would require new rights-of-way. Of the total 81 km, 60% (49 km) of land parcels crossed would be provincial Crown land and 40% (32 km) would be on private freehold land.

The Project would relieve bottlenecks and increase capacity to connect natural gas to local markets in Alberta, to domestic markets east of Alberta, and to export markets in the United States.

Implications

In its review, the Commission considered various socio-economic and environmental factors, as well as the views and concerns of Indigenous groups related to the Project, in accordance with applicable Acts and policies. In considering environmental factors, the Commission assessed potential impacts by determining plausible interactions between the Project and environmental components during the construction and operation of the Project.

Legal framework and interim principles

The Project was assessed by the Commission in accordance with the NEB Act, the CEAA, 2012, and the Species at Risk Act (SARA), and the review of the potential Project-related impacts on the rights and interests of Indigenous groups.

On January 27, 2016, Canada announced that five Interim Principles would apply to the review of major projects, to guide project reviews while the Government implemented a new regulatory review process (which culminated in Bill C-69). The Interim Principles provide that (i) no project proponent will be asked to return to the starting line; (ii) decisions will be based on science, traditional knowledge of Indigenous peoples and other relevant evidence; (iii) the views of the public and affected communities will be sought and considered; (iv) Indigenous peoples will be meaningfully consulted, and where appropriate, impacts on their rights and interests will be accommodated; and (v) direct and upstream greenhouse gas emissions linked to the projects under review will be assessed.

The Commission’s review and report to the GIC

When reviewing an application, the Commission must take into account a broad range of economic, market, environmental and social factors, as well as potential impacts to Indigenous rights and interests, to assess whether the Project is in the public interest. It also considers technical and safety considerations. The Commission is responsible for the full life cycle oversight of the project from construction through operation and end of life decommissioning. Environmental and Indigenous issues feature prominently in these reviews, given the importance of minimizing negative impacts. The Commission’s findings are presented in a report that provides its conclusions and the conditions that it recommends for the project to be in the public interest, if the Certificate is issued.

On May 31, 2019, the Commission issued a Notice of Public Hearing, Application to Participate, and Comments on Process (the Notice), with respect to the Project. The Notice advised the public of the intention to consider the Project application under the NEB Act and the CEAA, 2012 and required NGTL to provide the Notice to all potentially affected Indigenous groups identified by NGTL and Natural Resources Canada. The Notice included and asked for comments on a preliminary List of Issues, the Factors, and the Scope of the Factors to be considered in the Project’s EA, as well as the potential hearing process steps and associated deadlines. The Notice announced the granting of Pre-Decided Standing to Indigenous groups identified as being potentially impacted by the Project and included information on how to register to participate in the hearing process or apply to participate, if not already identified as being potentially impacted.

On August 26, 2019, the Commission released a Hearing Order, which finalized the List of Issues and the Factors and Scope of Factors for the review process, and included a Timetable of Events that set the various written and oral hearing process steps and provided deadlines.

After the CER Act came into force on August 28, 2019, the original NEB board members were replaced with Commissioners of the CER, and the Project review was completed by the new Commissioners.

On September 3, 2020, the Commission delivered its recommendation report, “Canada Energy Regulator Report — NOVA Gas Transmission Ltd. — GH-002-2019 (PDF)” [the Commission’s Report], to the Minister. The Commission determined that the Project is in the Canadian public interest and recommended that the GIC approve the Project, subject to 34 conditions. The conditions cover, among other things, construction activities, safety measures and standards, impact mitigation, environmental monitoring, caribou habitat protection, and matters related to Indigenous peoples.

Economic impacts

The Commission stated that the Project could bring significant economic benefits to Canada through capital investment, estimated by NGTL at $632 million. The Project is expected to benefit Canada’s economy by providing access to diverse markets for Canadian natural gas and maintaining its supply for diverse Canadian consumers; by developing the capacity of local and Indigenous people, communities, and businesses; through direct spending on pipe and construction materials in Canada; and by securing considerable revenues to various levels of government.

The Commission found the assumptions used by NGTL in its estimates to be reasonable, including the supply and demand forecasts submitted in the hearing. NGTL has stated that the Project is driven primarily by Western Canada Sedimentary Basin (WCSB) producers seeking increased access to markets and the ability to compete for downstream market shares in Canadian and export markets in the United States. This could provide producers with price stability and higher netbacks. NGTL has stated that the commercial need for the Project is manifested by customers signing long-term contracts for firm receipt and delivery transportation services that exceed the capacity of the current NGTL System.

NGTL expects that the total economic impact on Alberta would be $425 million in Gross Domestic Product (GDP) and $307 million in labour income, with a peak workforce of approximately 1 500 workers for the pipeline and 240 workers for the compressor station. Project development and construction is estimated to generate tax revenues of about $62.2 million federally, $34.1 million for the Government of Alberta, and $13.8 million for other provincial governments. During operations, the Project would contribute approximately $2 million per year in property taxes to the County of Northern Lights, Northern Sunrise County, Municipal District of Opportunity No. 17, and Clear Hills County, Alberta.

In the Project application, NGTL estimated that the Project would result in significant community investment, capacity funding, and contracting and procurement opportunities, including training, for local and Indigenous communities and businesses. NGTL committed to using qualified local and Indigenous employees, contractors, and service providers whenever feasible. NGTL also indicated that it would apply TC Energy’s (NGTL’s parent company) established Indigenous Relations Business Engagement program to the Project, meaning that, to the extent possible, NGTL will make every effort to hire and contract Indigenous individuals or businesses.

To increase the transparency of NGTL’s commitments regarding contracting and employment opportunities, the Commission recommended Condition 5, requiring NGTL to file an update to its Employment, Contracting, and Procurement Plan. This includes the submission of its Prime Contractors Aboriginal Participation Plan and a summary of how this Aboriginal Participation Plan aligns with NGTL’s Aboriginal Contracting and Employment Program.

The Commission further recommended Condition 27, requiring NGTL to file a report once construction is complete, summarizing the training, employment, contracting, and procurement elements or indicators monitored.

Requirements under the Species at Risk Act

The Commission must comply with SARA, and must be of the opinion that all reasonable alternatives that would reduce the impact of an activity on a species’ critical habitat have been considered and the best solution has been adopted (paragraph 77(1)(a)), and that all feasible measures will be taken to minimize the impact of the activity on the species’ critical habitat (paragraph 77(2)(b)). The Commission also must ensure that those measures taken to avoid or lessen any adverse effects of the Project on the listed wildlife species and its critical habitat are consistent with any applicable recovery strategy and action plans and monitor them (subsection 79(2)).

In compliance with SARA, the Commission notified the Minister of Environment and Climate Change on June 12, 2019, of the species at risk listed on Schedule 1 of SARA that would be potentially impacted by the Project.

The Commission identified the following species in its report: common nighthawk; olive-sided flycatcher; Canada warbler; rusty blackbird; evening grosbeak; barn swallow; yellow rail; horned grebe; short-eared owl; brown myotis and northern myotis; Woodland Caribou (Rangifer tarandus caribou), Boreal population; wolverine; wood bison; grizzly bear, Western population; and western toad. Of these species, only the habitat of Woodland Caribou, Boreal population, was identified as critical habitat.

Based on the findings and evidence from participants, the Commission recommended seven conditions aimed at protecting species at risk (Conditions 12, 25, 29, 30, 31, 32, and 33), of which five relate to caribou: one to caribou habitat restoration and four to monitoring, implementation of mitigation measures, and status reports.

As the Project is a designated project under the CEAA, 2012, the Commission was required to conduct an environmental assessment (EA) and prepare an EA report. In its review, the Commission found that NGTL’s Environmental and Socio-economic Assessment (ESA) included sufficient baseline information and was consistent with the CER’s Filing Manual and the CEAA, 2012 requirements and guidance documents.

Woodland Caribou (Red Earth and Chinchaga ranges)

Caribou is a species of importance for Indigenous groups’ cultural practices and activities, and Boreal Woodland Caribou are listed as “threatened” on Schedule 1 of SARA, and “endangered” under the Alberta Wildlife Act.

The Project will cross the Red Earth caribou range for 14.9 km and the new compressor station would be located within the Chinchaga caribou range, and will disturb 20.09 and 6.1 hectares of caribou critical habitat, respectively. The Commission noted that construction within the Chinchaga caribou range is unavoidable, and therefore certain activities should be scheduled to minimize sensory disturbance during sensitive periods for caribou.

The Commission was of the view that the Project is likely to have adverse effects caused by increased disturbances in the Red Earth and Chinchaga caribou ranges. Concerning the Red Earth caribou range, the Commission recommended Condition 25, which details that if construction activities are to occur within the restricted activity period, additional information is required in order to minimize impacts to caribou.

NGTL indicated that the company would restore and offset Project effects on caribou habitat through its Caribou Habitat Restoration and Offset Measures Plan (CHR&OMP), to ensure that the Project does not result in any net loss of caribou habitat.

In its review, the Commission considered NGTL’s CHR&OMP, filed as part of the application. The Commission requested changes to the CHR&OMP and the amended version was filed by NGTL during the proceeding. The Commission was of the view that, with the additional information, NGTL filed the appropriate information to demonstrate an understanding of the Project interactions and potential effects on caribou habitat.

The Commission recommended Condition 30 requiring the filing of a report and status update on the implementation and status of caribou habitat restoration undertaken on the Project rights-of-way within caribou habitat, and Condition 31 requiring NGTL to demonstrate how all Project-related residual effects from directly and indirectly disturbed habitat have been offset.

In order to oversee this monitoring, the Commission recommended Condition 32 to monitor and verify the effectiveness of the caribou habitat restoration and offset measures implemented as part of the CHR&OMP. The Commission also recommended Condition 33, requiring NGTL to file caribou monitoring reports that outline the results of the CHR&OMP.

On October 23, 2020, Canada and Alberta signed a conservation agreement under section 11 of SARA. The agreement provides an overarching strategy for caribou recovery in Alberta. It also provides for the formation of Indigenous and multi-stakeholder sub-regional task forces to make recommendations on habitat restoration.

Other wildlife species

The Commission was of the view that any potential Project impacts on the other species at risk are likely to be minimal and can be effectively addressed through NGTL’s proposed mitigation and best practices. The Commission recommended Condition 12, which requires NGTL to file an updated Project-specific Environmental Protection Plan for approval by the Commission and to provide a copy to all Indigenous peoples who have expressed an interest in receiving a copy of the plan.

Watercourse crossings

NGTL’s application indicates that the Project would result in six watercourse crossings and would cross three fish-bearing drainages.

The Commission concluded that NGTL’s proposed watercourse crossing methods and mitigation measures would ensure that the proposed watercourse crossings are safely constructed, with minimal risk to the environment. The Commission noted the concerns of some Indigenous groups regarding the “open wet cut” Notikewin River crossing, but considered the proposed method acceptable in light of NGTL’s rationale.

The Commission concluded that proper hydro-technical studies would be required in order to successfully design and implement pipeline crossings for watercourses. Therefore, the Commission recommended Condition 16, requiring NGTL to provide updates on terrain, geotechnical and hydro-technical assessments.

Specific to crossing the Loon River crossing, the Commission recommended Condition 17, requiring NGTL to file a detailed description of any proposed alternative crossing method, as well as Condition 21, requiring NGTL to file a notification of the alternative method and a description of the engagement with potentially affected Indigenous peoples should the alternative crossing method need to be implemented. The Commission further recommended Condition 22, which requires NGTL to provide a copy or copies of any Fisheries Act authorization(s) required for the construction of the Project.

In its review, the Commission acknowledged that the success of trenchless installations for pipeline construction depends on proper design and planning. Accordingly, the Commission recommended Condition 18, requiring NGTL to file a horizontal directional drilling (HDD) Execution Plan and Engineered Drilling Fluid Plan for the Loon River crossing at least 30 days prior to the commencement of HDD activities.

Water quality

The Commission recognized the concerns raised by Indigenous peoples with respect to water quality and acknowledged the importance of clean water to Indigenous peoples and the environment.

Concerning water quality, the Commission was of the view that NGTL has provided adequate mitigation measures to address concerns related to water quality, and that these measures will greatly reduce the potential for environmental impact from sedimentation.

With respect to hydrostatic testing, the Commission shared concerns raised by Indigenous groups and recommended Condition 23, requiring NGTL to file a hydrostatic testing plan for the Project at least 30 days prior to pressure testing. The plan would validate that proper procedures for the protection of the environment are used during hydrostatic testing.

Safety of the pipeline and facilities

The Commission has accepted the CSA-Z662-19 standard as the standard by which to rate the design and construction of the pipeline. NGTL has committed to maintaining access to at least $200 million in financial resources to respond to a potential incident, consistent with the Pipeline Financial Requirements Regulations, and has set aside funds for abandonment at the end of the Project’s life cycle.

The Commission assessed and tested evidence for project design and potential safety risks, considering all of the hazards and potential hazards that are associated with the pipeline systems. NGTL was required to demonstrate that the appropriate safety, pipeline integrity and risk management plans and measures are in place.

Accordingly, the Commission recommended Condition 2, requiring NGTL to design, locate, construct, and operate the Project in accordance with specifications, standards, and commitments made and other information included in or referred to in its application and any commitments made throughout the regulatory process. The Commission also recommended Condition 9, requiring NGTL to file a Geological Hazard Assessment Report at least 60 days prior to construction.

Concerning NGTL’s construction schedule, the Commission recommended Condition 14, requiring NGTL to provide a detailed construction schedule identifying major construction activities, and any modifications to the schedule as they occur. The Commission also recommended Condition 24, requiring NGTL to file monthly construction progress reports for each pipeline section loop.

Conclusions of the Commission

The Commission considered all commitments made by NGTL at various stages in the proceeding, and deemed NGTL’s commitments to be essential to its decision. The Commission therefore recommended Condition 13, which requires NGTL to track and fulfill the commitments it made in its application and during the proceeding.

In its assessment, the Commission determined that the Project is in the overall Canadian public interest and that after mitigation, it is not likely to cause significant adverse environmental effects or significant impacts to Indigenous interests (pursuant to section 29 of the CEAA, 2012). Therefore, the Commission recommended that the GIC approve the Project and that a Certificate be issued for the construction and operation of the Project, pursuant to section 52 of the NEB Act, subject to 34 Conditions covering matters including safety, environmental protection, and consultation with Indigenous peoples.

Consultations

Canada is committed to advancing reconciliation and renewing its relationship with Indigenous peoples to one based on a recognition of rights, respect, cooperation, and partnership. This commitment places an emphasis on ensuring that the Crown fulfills its duty to consult and, where appropriate, accommodates Indigenous peoples in a manner that is reasonable and meaningful. This includes fostering two-way dialogue in a manner that upholds the honour of the Crown.

Public participation is a cornerstone principle of the Commission’s review process. Its public hearing process for the review of the Project included Indigenous Intervenors, as well as stakeholders from industry, government, and the public. The Crown also undertakes separate consultations with Indigenous groups, outside the hearing process, to fulfill its duty to consult, and to engage in policy-based discussions with Indigenous groups.

CER hearing process

Twenty-two applications to participate (ATPs) in the proceedings for the Project were received and considered, including from 12 Indigenous groups, 6 commercial parties, 2 federal government departments, and one provincial government department. Shell Energy North America (Canada) Inc. participated in the hearing as a commenter, and all others participated as Intervenors. In total, 9 Intervenors and NGTL each filed written evidence, 8 Intervenors issued information requests (IRs) to NGTL, 7 Indigenous groups participated in the sharing of oral Indigenous knowledge, and 12 Intervenors and NGTL each provided final argument.

The Commission provided the opportunity to all Indigenous Intervenors to provide oral Indigenous knowledge to the Commission from February 3 to 6, 2020, in Peace River, Alberta. The Commission also offered remote sessions between January 30 and 31, 2020, for Indigenous Intervenors who were unable to appear at the in-person sessions. Oral Indigenous knowledge was shared by 7 Indigenous groups. Whitefish Lake First Nation #459 did not attend the oral Indigenous knowledge sessions but filed a written affidavit.

Stakeholder views and issues raised
Commercial parties

The Project generated little debate among commercial parties regarding its need or NGTL’s proposed tolling methodology. The Canadian Association of Petroleum Producers (CAPP), a major industry association, strongly supports the Project, as it agrees with NGTL’s forecasts of natural gas supply growth in the region and transportation capacity shortages, which is a key consideration. ConocoPhillips Canada stated that the Project is underpinned by firm transportation contracts entered into by it and other shippers, which currently exceed the capacity of the NGTL System beginning in 2022.

Landowners

Before NGTL filed its Project application, the proponent contacted landowners and land users, government officials (municipal, provincial, and federal level), community leaders, business development officers in municipalities, and emergency response service organizations.

NGTL has stated that engagement activities continued throughout the regulatory process and will continue through the construction phases of the Project. NGTL’s primary focus was responding to specific questions or concerns and following up with previously engaged stakeholders. During operations, ongoing engagement activities for the Project will be carried out in accordance with the provisions of TC Energy’s Public Awareness Program.

Federal and provincial government

Environment and Climate Change Canada

Environment and Climate Change Canada (ECCC) participated in the hearing process as an Intervenor, and filed information that relates to some of the concerns raised by Indigenous peoples in the hearing process, in matters such as caribou, cumulative effects, environmental emergencies, and air and greenhouse gas (GHG) emissions.

ECCC recommended that NGTL be required to provide a revised CHR&OMP that does not discount project effects and uses a higher offset ratio and that clearly demonstrates that habitat restoration is feasible and that restoration success will be verified through a follow-up program.

Regarding the Red Earth and Chinchaga caribou ranges, ECCC identified that they are 72 and 80% disturbed, respectively. ECCC recommended that any additional habitat loss in each range should be avoided, and in the event that the Project is approved, additional habitat loss should be fully mitigated using offsets. ECCC also recommended that habitat restoration (offsets) be located within the Red Earth and Chinchaga caribou ranges and in areas of the ranges that could provide the greatest benefits to the herds in order to diminish risk to the survival or recovery of the affected local population.

On air quality and project-related GHG emissions, ECCC requested NGTL quantify and clarify the sources of venting emissions, and indicate whether or not the sources are covered by ECCC’s Regulations Respecting Reduction in the Release of Methane and Certain Volatile Organic Compounds. ECCC also requested a copy of TC Energy’s Fugitive Emissions Management Program.

The Commission noted that the Project’s direct GHG emissions in its operational phase are estimated to be 0.13 megatons of carbon dioxide equivalent (Mt CO2) per year. Although the 2016 Interim Approach for Major Project Assessments requires the GIC to consider a project’s upstream GHG emissions, ECCC determined that an upstream GHG assessment of the Project was not required. This is consistent with the approach and methodology that is found in the Strategic Assessment of Climate Change, 2020.

On environmental emergencies, ECCC recommended that NGTL commit to mitigation strategies, contingency plans, and response capabilities commensurate with the Project’s environmental risks and that its plans include, but not be limited to, contingency plans based on worst-case and alternative accident scenarios, training and exercise programs, staff certification and continuous improvement programs, community awareness and education initiatives, and community notification and communications procedures.

Alberta Department of Energy

The Alberta Department of Energy (DoE) submitted that, with the projected growth in intra-basin demand markets in the North of Bens Area, there is a clear need for the Project to provide the additional capacity required to transport natural gas from Peace River to demand markets served by the NGTL System. The Alberta DoE stated that NGTL and its shippers would benefit from increased throughput on the NGTL System resulting from the incremental demand served by the Project facilities.

Indigenous involvement in the CER hearing

On March 21, 2019, the Commission wrote to 24 Indigenous groups potentially affected by the Project to advise them of the Project application filed on January 8, 2019. On May 31, 2019, the Commission issued the Notice of Public Hearing and Application to Participate, as well as information on the opportunity to comment on the Preliminary List of Issues and Factors and Scope of the Factors of the Environmental Assessment (EA) of the Project, inviting interested parties, including potentially impacted Indigenous groups, to apply to participate in the proceedings for the Project.

The Commission’s hearing process took place from August 26, 2019, to June 11, 2020. The Commission received and considered 12 ATPs from Indigenous peoples, and granted standing to participate in the proceeding according to each applicant’s request, allocating $400,000 in funding to 10 Indigenous groups to help them participate in the hearing process.

The Commission recognized the importance of the involvement and engagement of Indigenous peoples and recommended Condition 4, requiring NGTL to report on engagement with Indigenous groups throughout construction and Conditions 6 and 28, requiring NGTL to file plans describing the participation of Indigenous peoples in monitoring activities during and post construction.

The Commission was also satisfied with the measures proposed by NGTL to engage Indigenous groups on emergency-related matters throughout the lifecycle of the Project. The Commission recommended Condition 10 to ensure that NGTL continues to proactively plan to incorporate Project-specific elements within its continuing education program required by section 35 of the Onshore Pipeline Regulations. The Commission also recommended Condition 15, requiring NGTL to file emergency response plans for the construction phase of the Project and to share them with Indigenous groups who have expressed an interest in receiving a copy.

The Commission’s determination related to Indigenous consultations

The Commission set out its understanding of the constitutional and statutory framework in which it is capable of carrying out the Crown’s legal duty to consult, to the extent possible. The Commission found that NGTL designed and implemented appropriate and effective Indigenous engagement activities for the Project, and that the hearing process was appropriate for these circumstances and enhanced the information flow to potentially impacted Indigenous communities, and provided opportunities for meaningful participation of Indigenous groups.

The 12 Indigenous Intervenors who participated in the hearing process expressed concerns regarding the Project that fall into four main categories: (i) NTGL’s Indigenous engagement during construction; (ii) involvement of Indigenous groups in the Project implementation before, during, and after construction; (iii) Project benefits to Indigenous groups; and (iv) potential impacts of the Project on Indigenous groups, including on heritage resources, social and cultural well-being, human health, traditional land and resource use, and environmental and cumulative effects.

The Commission was of the view that there was adequate consultation and accommodation for the purpose of the Commission’s recommendation on the Project. It was also of the view that any potential Project impacts on the rights and interests of affected Indigenous groups, after mitigation, were not likely to be significant and would be effectively addressed.

To address potential impacts on rights and interests, the Commission recommended Condition 4, requiring NGTL to file reports on its engagement with Indigenous peoples throughout construction. The Commission further recommended Conditions 6 and 28, requiring NGTL to file a plan describing the participation of Indigenous peoples in monitoring activities during construction, as well as Condition 7, requiring NGTL to submit a report, prior to construction, on any outstanding traditional land and resource use investigations for the Project, including a description of how NGTL has revised its environmental protection plan (EPP) and its lifecycle oversight as a result of the investigations.

Crown consultations with Indigenous peoples

Canada has a legal duty to consult and, where appropriate, accommodate when it contemplates conduct that might adversely impact asserted or established Aboriginal or Treaty rights, such as the approval of the Project.

On June 21, 2019, Canada wrote to potentially impacted Indigenous communities to inform them that the Crown intended to rely on the CER hearing process to discharge the duty to consult with Indigenous groups on the Project, to the extent possible. The Department of Natural Resources (NRCan) encouraged Indigenous groups to apply to participate in the CER hearing process, and provided information on how to apply.

The Crown determined that it had a duty to consult with 22 potentially impacted Indigenous groups. Included in this 22 were the Athabasca Chipewyan First Nation and the Mikisew Cree First Nation because of the Project’s potential impact on the habitat of the Red Earth caribou herd and the groups’ concerns about the conservation of, and the continued exercise of rights with respect to, five boreal caribou herds in northeastern Alberta, including the Red Earth caribou herd. The Project does not intersect the traditional territories of either the Athabasca Chipewyan First Nation or the Mikisew Cree First Nation. In January 2021, the 22nd Indigenous group, the Cadotte Lake Métis, was added to the Crown list and offered participant funding.

The Crown determined that, although it did not have a legal duty to consult with two Indigenous groups, it would continue to meet and engage with the Foothills First Nation and the Papaschase First Nation on a policy basis to obtain information about the groups’ interest in and potential concerns with the Project.

On October 28, 2020, the Crown held an Information session on the CER Report at which CER staff, NGTL, ECCC, and 15 Indigenous groups were in attendance.

On November 30, 2020, the GIC, by Order in Council P.C. 2020-962, extended the statutory time limit for its decision until May 3, 2021, to provide more time for consultations in the context of the COVID-19 pandemic and to ensure that consultations with Indigenous groups are meaningful and are carried out in a manner that upholds the honour of the Crown. The Crown conducted supplementary consultations between June 2020 and March 2021.

Throughout the process, the Crown engaged with Indigenous groups through more than 39 meetings, and 20 Indigenous groups were provided funding to participate in Crown consultations.

Canada sought to work with potentially impacted groups to better understand how the proposed Project could impact Indigenous groups’ Aboriginal and treaty rights, as well as broader Indigenous interests. Subsequent to the Commission’s review process, Canada continued to engage with Indigenous groups to understand the nature and seriousness of any potential outstanding impacts to Indigenous rights and interests not otherwise addressed by Project conditions and proponent mitigations or commitments. Further, Canada sought to discuss with Indigenous groups how any outstanding impacts could reasonably be avoided, mitigated, or accommodated.

While developing the consultation objectives and approach for the Project, Canada also considered the views of Indigenous groups and its obligation to

  1. Consult in a way that is fully consistent with meeting Canada’s obligations under section 35 of the Constitution Act, 1982 and the Government’s commitments to advancing reconciliation with Indigenous peoples;
  2. Engage in substantive, meaningful two-way dialogue in order to fully understand concerns raised and the nature and seriousness of potential impacts on rights and to work collaboratively to identify and provide accommodations, where appropriate; and
  3. Be flexible in tailoring consultation approaches, to the extent possible, in a way that is responsive to the potential impacts and capacities of each group, and to the known concerns about the Project. This includes following any signed consultation protocol agreements with Indigenous peoples, to the extent possible.

Further details on the Crown consultation process and indigenous groups’ concerns can be found in the publicly available Crown Consultation and Assessment Report (CCAR).

Amendments and addition to Project Certificate Conditions

In order to discharge the Crown’s duty to consult Indigenous groups, and to accommodate the outstanding potential adverse impacts to Indigenous groups’ section 35 Aboriginal and Treaty rights, Canada is modifying the conditions in Appendix I of the Commission’s Report by adding three new conditions and by making consequent amendments to four of the conditions in Appendix I, as follows:

1. New Condition 35: Support for Indigenous Involvement to Review NGTL Filings related to Conditions

Condition 35 requires NGTL to

2. New Condition 36: Indigenous Working Group for the Chinchaga and Red Earth Caribou Ranges

Under Condition 36, NGTL is required to seek to establish an Indigenous Working Group (IWG) for the Chinchaga and Red Earth Caribou Ranges with any interested Indigenous groups who are potentially affected by the Project and who express an interest in participating. This will inform the planning and implementation of caribou habitat restoration, offsets, and monitoring, and the development of other filings relating to caribou and caribou habitat required under Conditions 30, 31, 32, and 33, including ensuring the collection and incorporation of caribou-specific Indigenous knowledge.

3. New Condition 37: Revised Caribou Habitat Restoration and Offset Measures Plan (CHR&OMP)

Under Condition 37, NGTL is required to file with the Commission for approval a revised CHR&OMP, including a summary of consultations undertaken with any interested Indigenous groups who are potentially affected by the Project and who expressed an interest in participating, to confirm that all caribou-specific Indigenous knowledge that has been provided has been reflected. NGTL is also required to provide a description of the offset measures that would be taken outside the Project area and the restoration measures along the pipeline to address the total amount of caribou habitat disturbance of the Project, in a manner consistent with the Recovery Strategy for the Woodland Caribou, Boreal Population, in Canada. This must include the anticipated time frame for remediation and a schedule for offset implementation. NGTL must also implement on-the-ground offsetting measures at a ratio of 30:1 in each of the impacted ranges, as defined in the Recovery Strategy, for restoration of the legacy footprint.

New Conditions 36 and 37 require amendments to Conditions 30, 31, 32, and 33 to ensure they are consistent with the new conditions.

The requirement in Conditions 30 and 31 to report on a quantitative assessment of offset value calculations is removed, as it is now stipulated in new Condition 37. However, a requirement to provide a summary of input from the Government of Alberta regarding locations for offsets is added to Condition 30. Conditions 30, 31, 32, and 33 all have been amended to require NGTL to report on the collaboration with the Indigenous Working Group, if established, with respect to each of the filings, and to summarize issues and concerns raised by Indigenous groups and how each has been addressed, or if not, an explanation as to why the issue or concern will not be addressed.

Conclusion

The Administrator in Council must consider the Commission’s conclusions and recommendations as to whether the Project is in the public interest and whether the Project is likely to cause significant adverse environmental effects, as well as the adequacy of Crown consultation and accommodation of Indigenous groups.

The Administrator in Council accepts the Commission’s view that the Project is required by the present and future public convenience and necessity and is in the Canadian public interest under the NEB Act, and the Commission’s view that, with appropriate mitigation, the Project is not likely to cause significant adverse and environmental effects under the CEAA, 2012.

The Administrator in Council is of the view that, given the role of the CER as a regulator throughout the lifecycle of the Project and the powers of the CER through compliance verification activities and enforcement actions, the mitigations and commitments of NGTL, the Commission’s conditions, the proposed amended conditions and new conditions, and existing government programs and policies, are capable of addressing the potential impacts to Indigenous interests.

The Administrator in Council, having considered the concerns of Indigenous groups as summarized in the Commission’s Report, the CCAR, and the independent submissions of Indigenous groups, is satisfied that the duty to consult and, where appropriate, accommodate, has been met.

The Administrator in Council considers that the Project would increase access to markets for Canadian natural gas, maintain access to natural gas supplies for diverse Canadian consumers, and support economic development while ensuring safety and environmental protection.

In reaching its public interest determination on whether to approve the Project, the Administrator in Council weighed a number of considerations including the Project’s benefits and burdens. It considered, among other things, the Commission’s Report, including the recommended Certificate conditions, the proponent’s commitments, and the measures that would be taken to monitor the effects of the Project on species at risk, including the Woodland Caribou (Boreal population) and its critical habitat, the CCAR, and the independent submissions of Indigenous groups.

In considering this information, the Administrator in Council, on the recommendation of the Minister of Natural Resources

Contact

Chris Evans
Senior Director
Pipelines, Gas and Liquefied Natural Gas Division
Strategic Petroleum Policy and Investment Office
Telephone: 343‑292‑6521