Earlier this week, the Expert Panel on the NEB Modernization released a report titled "Forward, Together – Enabling Canada’s Clean, Safe and Secure Energy Future" opening up a period of 30 days for comment ending on June 14th. The federal government will then study the report and act on its contents, or not, in the next few months.
Despite the Council of Canadian’s conflict of interest warnings at the outset of this panel report, and despite the expert panel’s admission of corporate capture of the National Energy Board, their proposal for a one year national interest determination fully and completely espouses the industry consensus that industry insiders and the Canada West Foundation presented during the expert panel process, namely the two step process that starts with a high level national interest determination. Yes, this is the the same Canada West Foundation that a member of the expert panel is a board member for.
There are three major problems we want to highlight with this specific proposal. First, it completely eliminates the notion of public interest that was one of the few redeeming characteristics of the National Energy Board and replaces it with a much different notion of national interest that seems more distant from communities and that has yet to be defined.
Second, it promotes an oil industry exceptionalism, treating the industry as a special special among all other major projects. Aside from the fact that there is once again no specific definition of major projects, there still does not seem to be any reason why the evaluation of energy transmission infrastructure should be subject to an evaluation distinct from other environmental assessment processes. We know that major oil and gas projects will be less and less common, or non existent as we endeavour to phase-out fossil fuels, and since we are on the heels of a a fresh EA review process it does not seem prudent or logical to have a completely different review process for energy transmission infrastructure. Following the regular evaluation process does not prevent the regulator to play a technical advisory role as well as a licensing one.
Thirdly, part of the problem with the current NEB process is its proximity to industry and the lack of transparency and public participation. If you relegate the yes and no decision to a high level strategic-level conversation that precedes some of the technical assessments, it will inevitably put undue pressure on the public participation process and indigenous consultation process. First off the process will seem rushed, and further to that, without some of the technical assessments or the detailed environmental assessment, it will seem like details are missing and provide for a partial, superficial and unsatisfactory consultation process, if some of the specific items are relegated to future technical consultations around mitigating impacts. For example, understanding how a pipeline would cross a river, the potential consequences to that crossing and other similar details seem crucial to any public participation process that contributes to yes and no determinations.
Earlier engagement is a positive step, but not at the expense of an expedited and strictly high-level national interest determination process.
Will we stop at a re-branding or will we fix what ails the NEB?
As many might be familiar in the corporate world, we must be wary of re-branding, or the simple change of a name without fixing the problems of the National Energy Board, and this is where the details and the implementation is crucial. The federal government has already hinted that it will pick and choose recommendations, but we must do this right.
Despite our extremely critical view on one of the main outcomes of this report, the expert panel does issue a very damning review of the outdated NEB. There are also many great nuggets that are worth highlighting, only some of which we will mention here. First the recognition that corporate capture is a concern. Second the recognition that the NEB is mainly a people VS suits process and that public participation is severely limited, is important. But without getting the decision-making and public participation process right, as well as the governance and the transparency right it’ll be hard to break with the difficult history of the NEB and move beyond that.
However, in trying to please industry interests in its report, it seems that continuing to say that “pipelines and transmission lines are critical drivers of economic prosperity and social good” would be out of step with what many have said, especially in the case of pipelines, notably when you add climate change and indigenous rights to that equation. And this is also where Prime Minister Justin Trudeau walks a fine line. The economy and the environment can work hand in hand, but it hasn’t and that needs to be recognized. The economy must be at the service of its people, otherwise it is only an economy for the 1% and private investors, and the development of new major fossil fuel infrastructure does not fit this picture.
Finally another critical component that any successful and relevant restructuring of an energy regulator must integrate is the principles of Free, Prior and Informed Consent enshrined in Article 19 of the UN Declaration on the Rights of Indigenous Peoples. While these principles are partly recognized, the report stops short of suggesting ways to tackle the lack of consent in the proposed processes, and sticks with improving consultative processes. It definitely remains a point of contention, but one that continues to evolve.
In an age where we are phasing out fossil fuels, and as we recognize the problems with corporate capture, it is also good that the report re-emphasizes that the role of the regulator is one along the entire life cycle, from the licensing, to proactive monitoring, regulatory enforcement, and the decommissioning of pipelines or other infrastructure.
It is our hope that this report opens the door to critical changes to what has been a complicated and devastating energy landscape in Canada that has primarily resulted in large profit for the fossil fuel industry at the expense of communities, indigenous rights, the environment and future generations.