NOVA Gas Transmission Ltd. 2021 (NGTL 2021)

Background:

On June 20, 2018, NOVA Gas Transmission Limited (NGTL), a wholly-owned subsidiary of TC Energy (formerly TransCanada Corporation), filed an application under Sections 52 and 58 of Part III and Part IV of the National Energy Board (NEB) Act to construct and operate the NGTL 2021 System Expansion Project (the Project).

The Project is an expansion to the existing NGTL System, a natural gas gathering and transportation system that spans much of Alberta and parts of northeast British Columbia. The $2.3 billion Project consists of the construction of approximately 344 km of new pipeline in eight sections, three compressor station units, and related components and facilities that would extend from Grande Prairie to north of Calgary, Alberta. If approved, the Project would “loop” (add new pipeline parallel or adjacent to existing pipeline) parts of the existing NGTL System.

Of the 344 km of proposed pipeline, approximately 85 per cent (293 km) would run parallel to existing linear disturbances (such as pipelines, roads, and electrical power lines). Of this portion, just less than half would be located within existing NGTL land rights. Approximately 15 per cent (51 km) of the proposed pipeline would require new right-of-way (RoW). Overall, approximately 80 per cent of the pipeline would cross provincial Crown lands and the remainder would cross private freehold lands. None of the new pipeline route would cross reserve lands, or federal Crown lands.

NGTL required a federal Certificate of Public Convenience and Necessity for this Project. Since the proposed pipeline, in aggregate, exceeds 40 km in length and will be regulated by the Canada Energy Regulator (CER), formerly the NEB, the Project is a “designated project” under the Regulations Designating Physical Activities. As a designated project, the NEB Act required that an environmental assessment be prepared under the Canadian Environmental Assessment Act, 2012 (CEAA 2012).

CER Recommendation report:

Following an assessment by the Commission of the Canada Energy Regulator (the Commission), the Commission determined that the Project is in the Canadian public interest and released its Recommendation report on February 19, 2020. The report recommended that the Project be approved, subject to 34 conditions that would be attached to the Section 52 Certificate, and would impose 24 conditions on the Order for the Section 58 Facilities and Activities that would be issued in respect of the Project.

Please visit the CER’s website to obtain more information on the Project or any documents filed during the review by the CER.

NRCan as Crown consultation coordinator:

In January 2016, the Minister of Natural Resources and the Minister of Environment and Climate Change announced interim measures to be applied to projects undergoing regulatory review as part of a long-term plan to review the environmental assessment process and modernize the CER. During the interim period, the Government’s decisions on major projects, including this Project, was guided by five principles:

• No project proponent was asked to return to the starting line;
• Decisions were based on science, traditional knowledge of Aboriginal peoples, and other relevant evidence;
• The views of the public and affected communities were sought and considered;
• Indigenous peoples were meaningfully consulted, and where appropriate, impacts on their rights and interests were accommodated; and,
• Direct and upstream greenhouse gas (GHG) emissions linked to the Project were assessed.

For this Project, the Major Projects Management Office (MPMO) at Natural Resources Canada (NRCan) served as Crown consultation coordinator and relied upon the CER Hearing process, to the extent possible, to fulfil any duty to consult. Through supplementary consultations, the Crown consultation team sought to engage with Indigenous groups to understand the nature and seriousness of any potential outstanding impacts to Indigenous interests not otherwise addressed by Project conditions and proponent commitments.

Extension to the legislated time limit for the Government's decision on the Project:

In response to COVID-19, the Governor in Council (GiC) extended the legislative timeline for consultations with Indigenous groups on the Project by five months, extending the decision date on the Project from May 19, 2020 to no later than October 19, 2020. This was to ensure that the duty to consult with potentially impacted Indigenous groups could be meaningfully fulfilled in light of the impacts of the COVID-19 pandemic on Indigenous communities.

Decision:

On October 19, 2020, the GiC approved the issuance of the Certificate of Public Convenience and Necessity by the CER, allowing NGTL to construct and operate the Project under and in accordance with Sections 52 and 58 of the NEB Act, subject to the conditions.

In response to concerns raised by Indigenous groups, the Minister of Natural Resources recommended to the GiC the inclusion of a new condition, Condition 35 – an Indigenous Working Group for the Little Smoky Caribou Range.

In addition, the Minister of Natural Resources recommended to the GiC that the following five CER conditions for the Section 52 certificate be amended to further address impacts to section 35 rights:

Condition 6 – Revised Caribou Habitat Restoration and Offset Measures Plan (CHR&OMP)
Condition 12 – Construction Monitoring Plan for Indigenous Peoples
Condition 14 – Report on Engagement with Indigenous Peoples
Condition 27 – Post-construction Monitoring Plan for Indigenous Peoples
Condition 31 – Caribou Habitat Restoration Implementation Report and Status Update

The Crown Consultation and Accommodation Report (CCAR) for the Project describes the outcome of the Crown’s consultation process, including the responses to concerns raised by groups, with potentially impacted Indigenous groups with respect to the Project.