The NEB has a New Government Participant Role

Updated: September 2008

In 2003, the National Energy Board (NEB) launched the Federal Authority (FA) Initiative to facilitate improved coordination and working relationships with other federal departments involved in environmental assessments carried out within NEB processes. The Board has used the results of the initiative to identify ways to improve coordination and communication with FAs and facilitate their involvement in Board processes. One improvement is the creation of a new Government Participant (GP) role for FAs within the NEB hearing process. The intention is to support all FAs in meeting their respective Canadian Environmental Assessment Act responsibilities, while protecting the integrity of the NEB process. The GP role would work in tandem with the Federal Environmental Assessment Coordinator role to improve FA understanding of, and participation in, NEB hearings.

In addition to the new GP role, FAs will still have the letter of comment, oral statement (if provided for in the Hearing Order), and full intervention as participation options available to them.

The basic features of the new role are as follows:

• Government departments who may be RAs or who may have expert or specialist advice or knowledge in respect of the environmental assessment of the project would continue to be sent a section 5 coordination letter by the NEB or the Canadian Environmental Assessment Agency (the Agency) pursuant to the Regulations Respecting the Coordination by Federal Authorities of Environmental Assessment Procedures and Requirements (SOR/97-181).
• Only those FAs that respond to the NEB or the Agency's section 5 letter with an interest in the project would be sent the NEB Hearing Order.
• FAs may still participate in the hearing as an intervenor, or provide comments by way of a letter of comment or oral statement (if provided for in the Hearing Order). Alternatively, FAs may now also participate as a GP.
• FAs wanting to participate as a GP must file that declaration by the deadline set out in the Hearing Order. (Instructions and forms)
• GPs will be considered parties to the hearing, and included on the distribution of parties.
• FAs have indicated that they do not wish to be served with all documentation in a hearing as much of it is not of relevance to them. Therefore, parties to the hearing (the applicant, intervenors, and other GPs) will only be required to serve the GP with information requests and requests to cross-examine the GP.
• The Board will make reasonable efforts to serve the GP with all other documents that relate to environmental and procedural matters. It is the responsibility of the GP to check the Board's electronic repository and the public registry to ensure that it receives all pertinent information.
• GPs may ask information requests of the applicant only, but not other intervenors or GPs.
• The Board may ask questions of the GP even when the GP has not filed evidence, for the purpose of ascertaining whether the environmental evidence meets the GP's needs.
• GPs may file written evidence.
• The Board, applicant and intervenors may ask IRs on the GPs evidence (and will serve them directly on the GP). If the GP objects to answering an IR, it shall file a letter with the Board setting out the reasons for its objection. The party asking the IR would have an opportunity to respond to the objection before the Board would rule whether the IR must be answered.
• An GP may be subject to cross-examination but only if leave of the Board is received. The Board will examine the nature of the questions, the relevance to the proceeding, and why fairness requires cross-examination of the GP before granting such leave.
• GPs may participate in hearing conferences on environmental or procedural matters.
• GPs will be given notice of motions pertaining to environmental or procedural matters and can make submissions.
• GPs may comment on proposed conditions relating to environmental matters.

Further details of the new GP role will be provided in future NEB Hearing Orders and any specific Hearing Order may modify this procedure as needed for that proceeding. The effectiveness of the new GP role will be assessed based on post-hearing feedback.

For more information, contact Ms. Margery Fowke (margery.fowke@neb-one.gc.ca), Legal Counsel at 403-299-3937.