Canada Gazette, Part I, Volume 155, Number 26: ORDERS IN COUNCIL
June 26, 2021
DEPARTMENT OF HEALTH
PEST CONTROL PRODUCTS ACT
Order Approving the Interim Order Respecting Ultraviolet Radiation-emitting Devices and Ozone-generating Devices
P.C. 2021-604 June 17, 2021
His Excellency the Administrator of the Government of Canada in Council, on the recommendation of the Minister of Health, pursuant to paragraph 67.1(2)(a)footnote a of the Pest Control Products Actfootnote b, approves the Interim Order Respecting Ultraviolet Radiation-emitting Devices and Ozone-generating Devices, made by the Minister of Health on June 7, 2021.
(This note is not part of the Order.)
This Order in Council approves the Interim Order Respecting Ultraviolet Radiation-emitting Devices and Ozone-generating Devices (the IO), made by the Minister of Health on June 7, 2021. The IO brings certain ultraviolet radiation-emitting (referred to in this note as “UV”) and ozone-generating devices under the Pest Control Products Act (PCPA). These devices are marketed to control or kill bacteria, viruses including SARS-CoV-2 (the coronavirus that causes COVID-19 disease), and other microorganisms on surfaces, on objects, in water or in air.
Under the IO, certain UV and ozone-generating devices are subject to safety and efficacy assessments, and must be registered prior to entering the Canadian market. Certain UV devices will be exempt from registration (i.e., meaning it is authorized for sale and use without the need for registration) if they meet certain conditions.
The Minister may make an interim order under subsection 67.1(1) of the PCPA if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to health, safety or the environment.
Without this Order in Council, the IO would, in accordance with paragraph 67.1(2)(a) of the PCPA, cease to have effect 14 days after it was made. As a result of the Order in Council, the IO will cease to have effect on the day on which it is repealed, on the day on which regulations having the same effect come into force, or one year after the day on which the Interim Order is made, whichever is earliest.
This Order in Council ensures the continued effect of the IO, which will protect the health and safety of Canadians by providing appropriate oversight of UV and ozone-generating devices.
UV and ozone-generating devices that make claims to control or kill bacteria and viruses on surfaces, objects, in water, and in the air are widely and increasingly available for sale in Canada during the pandemic. Thousands of these devices are being sold for use predominantly in domestic dwellings, including UV wands and UV cleaners (e.g., represented and sold to disinfect or sanitize toys, bags, or cellphones). Based on a preliminary search of e-commerce sites, over 2 000 UV devices marketed to sanitize cellphones and over 550 UV devices marketed to sanitize toys are available to purchase online from a single retailer. The availability of these devices was precipitated by the pandemic. The marketplace also includes devices that emit ultraviolet radiation (e.g., represented and sold to disinfect small to large rooms) and ozone-generating devices intended to treat surfaces, air within an enclosed space, or water (e.g., in humidifiers or as a cleaning solution).
To date, Health Canada has not yet received sufficient evidence to demonstrate that they can be used safely or that they work as claimed.
Regulatory authorities, such as Health Canada and the U.S. Food and Drug Administration, continue to advise the public that the effectiveness of these devices in inactivating SARS-CoV-2 is unknown. For UV devices, there is limited published data about the wavelength, dose, and duration of the radiation required to inactivate this virus, which now also includes variants. Because some of these UV devices are used by the general public, there is a risk of exposure through high dose or prolonged low dose use. Exposure to these devices can result in serious eye disorders (e.g., cataracts), severe skin burns, and skin cancer. The Canadian Centre for Occupational Health and Safety (CCOHS) also reports similar adverse health effects due to exposure to ultraviolet radiation. The World Health Organization International Agency for Research on Cancer has classified ultraviolet A, B, and C as probably carcinogenic to humans. Similarly, the U.S. Environmental Protection Agency and other organizations have found that inhaling ozone can lead to decreased lung function, irritation of respiratory pathways, and inflammation of pulmonary tissues as well as irreversible lung damage leading to higher susceptibility of respiratory infections, which is very serious given the respiratory effects associated from exposure to this virus.
The health effects of both ultraviolet radiation and ozone have been well-characterized. However, Canadians may not realize that they have been putting themselves at risk, and that their symptoms are related to the use of such devices. This is because the acute effects associated with exposure to ultraviolet radiation and ozone can easily be attributed to other causes, and chronic health effects take time to manifest.
Due to health and safety concerns and the current availability of these devices on the market, on November 18, 2020, Health Canada published an advisory warning Canadians about the risks of using UV lights and wands that make unproven claims to kill SARS-CoV-2. Health Canada advises Canadians to stop using UV lights and wands that claim to disinfect against the virus that causes COVID-19 especially if the product is for use on the skin.
The Minister of Health's primary mandate under the PCPA is to prevent unacceptable risks to human health and the environment from the use of pest control products. Currently, there is a gap in regulating these devices and as the pandemic continues more Canadians may rely on unsafe and unproven products, with the belief that they are protecting themselves from COVID-19 while they may, in fact, be inadvertently putting themselves at risk. The IO allows immediate action to protect Canadians and address the significant risks described above.
This Order in Council approves the IO, allowing it to remain in effect for one year, in accordance with subsection 67.1(2) of the PCPA. This timeframe would provide Health Canada the opportunity to consider amendments to the Pest Control Products Regulations to normalize the requirements.
Under the IO, devices that are manufactured, represented, distributed or used to control, destroy or inactivate viruses, bacteria or other micro-organisms that are human pathogens, or to reduce their levels — other than in swimming pools, spas or wastewater treatment systems — by means of ultraviolet radiation or ozone, are subject to regulation under the PCPA. The IO provides an exemption from the application of the PCPA to Class II, III, and IV medical devices regulated under the Food and Drugs Act Medical Devices Regulations.
By bringing UV and ozone-generating devices under the PCPA, they need to be registered or otherwise authorized in order to be on the Canadian market. An application to register a pest control product must be submitted to Health Canada in the form and manner directed by the Minister and must include any information and other material that is required by the Pest Control Products Regulations to accompany the application. Applications to register devices consist of a number of information and data requirements, including a cover letter stating the purpose of the application, an application and fee estimate forms, the proposed English and French product labels, as well as data to support the safety and efficacy of the device. A registration will be granted under the PCPA if the Minister considers that the health and environmental risks and the value of the device are acceptable after any required assessments.
The PCPA prohibits the manufacture, possession, distribution, importation, and use of a pest control product unless it is registered or otherwise authorized. It is a contravention of subsection 6(7) of the PCPA to package, label or advertise a pest control product in a way that is false, misleading or likely to create an erroneous impression regarding its character, value, quantity, composition, safety or registration.
A UV device is exempt from registration if it meets certain conditions, including: the device being certified to the applicable Canadian electrical safety requirements; the ultraviolet lamp is fully shielded or enclosed in the device in a manner that prevents access to it by users of the device and prevents exposure to ultraviolet radiation; and only claims of supplemental sanitization (e.g., this UV device helps reduce microorganisms on surfaces, and this UV device helps reduce the spread of viruses in the air) can be made in respect of the device. UV devices that meet the conditions are considered to have acceptable risk and value and therefore, they are exempt from registration.
UV devices that are exempt from registration must meet the label requirements for the principal and secondary display panels and the operating manual. These label requirements include a number of precautionary statements, directions for use, and information about a contact in Canada for inquiries.
Stakeholders will have a 30 day transition period after the IO is made before having to comply with its requirements. A transition period of 30 days balances the immediate need to protect Canadians and the need to provide stakeholders some time to take necessary steps to comply with the IO (e.g., removing from the market devices that have unproven claims or devices that do not meet electrical safety requirements).
Fees associated with assessing applications are set out in the Pest Control Products Fees and Charges Regulations. It is estimated that it would cost applicants approximately $2 200 to process an application for UV or ozone-generating devices; however, additional fees may apply if a preliminary assessment of a device determines that further information is required to support the application.
UV and ozone-generating devices, including authorized devices that are manufactured, imported, distributed or used, will be subject to risk-based compliance verification following the transition period and subject to enforcement actions where non-compliance is confirmed. These enforcement actions may include: warning letters; detention and seizure of products; compliance orders under the PCPA; and notices of violation with warning or monetary penalty under the Agriculture and Agri-Food Administrative Monetary Penalties Act. Health Canada will continue to conduct compliance promotion with regulated parties to increase their awareness and understanding of these new requirements.
In 2018, Health Canada published a regulatory pre-consultation discussion paper (PRO2018-02, Pre-Consultation - Proposed Regulatory Amendments to the Pest Control Products Regulations (Pest Control Devices). This paper proposed amendments to regulate pest control devices, including UV and ozone-generating devices. Health Canada also hosted a stakeholder webinar on the proposal following the publication of the paper. No concerns relating to regulatory and administrative burden were received. Six stakeholders submitted comments seeking clarification regarding the conditions for exemption from registration. Comments provided through engagement opportunities have been considered in the development of conditions for exemption from registration.
Health Canada's Pest Management Regulatory Agency (PMRA) has taken various steps to keep stakeholders and the public informed. For instance, on April 30, 2021, a Notice of Intent was published to inform stakeholders and Canadians of Health Canada's intent to regulate UV and ozone-generating devices. To date, stakeholders have sought clarification of the scope of the IO, requirements for registration, and conditions for exemption. No concerns were raised. In addition, on May 12, 2021, PMRA published a Questions and Answers (Q&As) document providing stakeholders and the public information, including the requirements and conditions for exemptions that were being considered and devices that would be subject to the IO. Health Canada will continue to conduct compliance promotion activities to increase awareness of the new requirements.
Please direct all questions and inquiries to:
Policy and Operations Directorate
Pest Management Regulatory Agency
2720 Riverside Drive
DEPARTMENT OF NATURAL RESOURCES
NATIONAL ENERGY BOARD ACT
Order — Certificate of Public Convenience and Necessity GC-133 to NOVA Gas Transmission Ltd. in respect of the proposed construction and operation of the Edson Mainline Expansion Project in Alberta
P.C. 2021-605 June 17, 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 Edson Mainline Expansion Project (“Project”) in Alberta, consisting of 85 kilometres of new natural gas pipeline and associated facilities, and on April 3, 2019 NGTL submitted the application to the Board;
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 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 21 Indigenous groups applying to participate in the hearing with 20 being granted intervenor status for the proceedings, including 10 Indigenous groups who shared oral Indigenous knowledge, and one being granted commenter status;
Whereas, on June 19, 2019, Canada wrote to 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 July 23, 2020;
Whereas, pursuant to subsection 79(1) of the Species at Risk Act (“SARA”), the Minister of the Environment and the Minister of Fisheries and Oceans were notified that certain species listed under Schedule 1 of SARA are potentially affected by the Project;
Whereas, having determined that NGTL's application was complete, the Board issued Hearing Order GH-001-2019 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, the Commission held oral Indigenous knowledge sessions from January 21 to 22, 2020 in Red Deer, Alberta, and from February 25 to 27, 2020 in Edmonton, 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 17 Indigenous intervenors were awarded participant funding by the Commission to support participation in the hearing process;
Whereas, on November 19, 2020, having completed the hearing, reviewed NGTL's application, conducted an environmental assessment of the Project, and considered the impacts on species at risk, the Commission submitted its report on the Project entitled Canada Energy Regulator Report – NOVA Gas Transmission Ltd. – GH-001-2019 (the “Commission's Report”) to the Minister of Natural Resources, pursuant to section 29 of 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 an order under section 58 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, maintaining access to natural gas supplies for diverse Canadian consumers and socio-economic benefits related to the creation of employment and of procurement contracts resulting in contributions to local, regional, provincial and federal economies;
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 permanent loss of 2.4 hectares of old seral stage forest, including culturally important plants; potential adverse effects on Indigenous peoples including lasting cultural implications stemming from potential cumulative effects on traditional land and resource use and 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; potential impacts on unidentified traditional land and resource use and cultural sites; 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 24 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 CEAA, 2012;
Whereas the Commission also considered the requirements of sections 77 and 79 of SARA;
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 December 9, 2020, the Crown held an information session at which the Canadian Energy Regulator, NGTL, the Department of the Environment and more than 23 Indigenous groups were in attendance;
Whereas by Order in Council P.C. 2021-43 of February 5, 2021, the Administrator in Council extended the time limit to render its decision to June 19, 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 27 Indigenous groups with whom the Crown had a duty to consult, and 5 additional groups as a matter of policy, through more than 60 meetings, and 19 Indigenous groups were provided funding to participate in the process;
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 and engagement 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 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 the conditions set out in Appendix I of the Commission's Report, and upholds the honour of the Crown;
Whereas the Administrator in Council considers that the Project would increase 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 western Canada, maintaining access to natural gas supplies for diverse Canadian consumers and support for economic development while ensuring safety and environmental protection;
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 by the condition 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,
- (a) in order to adequately fulfill Canada's duty to consult and to accommodate any outstanding concerns of Indigenous groups, adds the condition set out in the annexed schedule to the conditions set out in Appendix I of the Commission of the Canadian Energy Regulator's report of November 19, 2020, entitled Canada Energy Regulator Report – NOVA Gas Transmission Ltd. – GH-001-2019;
- (b) pursuant to subsection 54(1) of the National Energy Board Act, directs the Commission of the Canadian Energy Regulator to issue Certificate of Public Convenience and Necessity GC-133 to NOVA Gas Transmission Ltd., in respect of the proposed construction and operation of the Edson Mainline Expansion Project in Alberta, subject to the conditions set out in Appendix I of the Commission of the Canadian Energy Regulator report of November 19, 2020, entitled Canada Energy Regulator Report – NOVA Gas Transmission Ltd. – GH-001-2019, and the additional condition referred to in paragraph (a); and
- (c) pursuant to subsection 31(1) of the Canadian Environmental Assessment Act, 2012, decides that, taking into account the implementation of the mitigation measures set out in the conditions referred to in paragraphs (a) and (b), the Edson Mainline Expansion Project is not likely to cause significant adverse environmental effects, and directs the Commission of the Canadian Energy Regulator to issue a decision statement concerning that Project.
Schedule I to the Order in Council
NOVA GAS TRANSMISSION LIMITED (NGTL) EDSON MAINLINE EXPANSION PROJECT - NEW CONDITION
Condition 25. 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.
- a) NGTL shall file with the Commission, at least 45 days prior to commencing construction of the Section 52 Pipeline and Related Facilities, and every 6 months until the conditions identified are filed, a summary of the discussions it has had with Indigenous peoples regarding filings related to conditions. This shall include discussions on funding to support the review of filings related to Conditions 4, 5, 6, 7, 8, 9, 10, 12, 14, 15, 16, 20, 21, 22, and 24, and other conditions for which Indigenous peoples express an interest in receiving copies of filings, with a description of any outstanding concerns raised by Indigenous peoples regarding NGTL's offer of funding to support their review, including a description of how these concerns have been or will be addressed by NGTL, or a detailed explanation of why these concerns will not be addressed by NGTL.
- b) NGTL must also provide a list of Indigenous peoples who have expressed an interest in receiving a copy of filings related to any of Conditions 4, 5, 6, 7, 8, 9, 10, 12, 14, 15, 16, 20, 21, 22, and 24, and other conditions for which Indigenous peoples express an interest in receiving copies of filings, and which Indigenous peoples expressed an interest in which filings.
(This note is not part of the Order.)
Proposal & Objective
This Order in Council, pursuant to section 54 of the National Energy Board Act (NEB Act), directs the Commission of the Canadian Energy Regulator (CER) to issue a Certificate of Public Convenience and Necessity (Certificate) to NOVA Gas Transmission Limited (NGTL) for the Edson Mainline 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.
On April 3, 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 GIC approval. For a Certificate to be issued, the Governor in Council (GIC) may, by Order in Council direct the Commission of the CER (the Commission) to issue a Certificate with conditions after it has taken into consideration the Commission's review of the project.
During the review process, Bill C-69 received Royal Assent. As a result, on August 28, 2019, the NEB Act was replaced with 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 (EA) was continued under the CEAA, 2012.
The Project is a “designated project” pursuant to subsection 2(1) of the CEAA, 2012, for which the Commission is the responsible authority (RA). Accordingly, the Commission is required to conduct an 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 is responsible for the review of the Project application. After concluding the 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, whether the action occurred prior to or after the coming-into-force of the CER Act.
The $509 million Project consists of the construction and operation of approximately 85 kilometers (km) of new natural gas pipeline in western Alberta, in two different sections, plus associated facilities. The Project will increase the capacity of the existing NGTL System by “looping” (i.e. interconnecting new pipe segments parallel to the existing pipelines).
NGTL has stated that approximately 86 per cent (73 km) of the 85 km of new pipeline would be contiguous with existing NGTL pipelines or other linear disturbances and 12 km would require new right-of-way. Of the total 85 km, 98 per cent (approximately 83 km) of land parcels crossed would be provincial Crown land and 3 per cent (approximately 3 km) would be on private freehold land.
The Project would relieve bottlenecks and increase capacity to connect natural gas to local markets in Alberta, domestic markets east of Alberta, and to export markets in the United States.
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, CEAA, 2012, and the Species at Risk Act (SARA) and a review of the potential Project-related impacts on the rights and interests of Indigenous groups.
On January 27, 2016, Canada announced 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.
In accordance with the Interim Principles for Major Project Reviews, an assessment of the upstream GHG emissions, which quantifies the range of GHG emissions released as a result of upstream activities associated with the project, is required to inform the Administrator in Council's decision on the Project.
TC Energy completed an upstream GHG emissions assessment using the methodology recommended by ECCC and published in the Canada Gazette, Part I on March 19, 2016. ECCC reviewed the Upstream GHG Emission Assessment report completed by TC Energy and concluded that the upstream emissions associated with the Edson Project would be either completely or nearly all incremental. Canada provided an opportunity for public comment on the report, and the Upstream GHG Emissions report was posted on the Major Projects Management website and open for public comment from March 6, 2021 to March 26, 2021. No comments were received before the comment period closed on March 26, 2021
The CER Recommendation 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 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.
When the Hearing Order was issued on August 26, 2019, the process included both written and oral components. Oral hearings were cancelled, however, as a health and safety measure due to Covid-19. The hearing proceeded as a written process with an additional round of Information Requests in place of oral cross-examination.
On November 19, 2020, the Commission delivered its recommendation report, “Canada Energy Regulator Report – NOVA Gas Transmission Ltd. – GH-001-2019 (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 24 conditions. The conditions cover, among other things, construction activities, safety measures and standards, impact mitigation, environmental monitoring, and matters related to Indigenous peoples.
CER Hearing Process
Thirty-two applications to participate (ATPs) in the proceedings for the Project were received and considered, including 20 Indigenous groups, six commercial parties, two federal government departments, and one provincial government department. Asini Wachi Nehiyawak Traditional Band, Greg Kolbeck, and Shell Energy North America (Canada) Inc. participated in the hearing as commenters, and all others participated as Intervenors. In total, 14 Intervenors and NGTL filed written evidence, 15 Intervenors issued information requests (IRs) to NGTL, and 11 Intervenors and NGTL provided written final arguments.
The Commission provided all Indigenous Intervenors the opportunity to provide Oral Indigenous Knowledge to the Commission from January 21 to 22, 2020 and from February 25 to 27, 2020, in Red Deer and Edmonton, Alberta, respectively, to allow the Commission to better understand the concerns of Indigenous Intervenors on the Project. Ten Indigenous groups shared oral Indigenous knowledge.
Stakeholder Views and Issues Raised
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 this Project, as it agrees that the Project would provide required access to markets for CAPP members and other NGTL shippers. NorthWestern Energy has entered into a long-term contract for incremental natural gas service for its Montana residential customers and indicated that, without the Project, the supply will not be available for future growth in Montana and that no other viable gas sources are available to fulfill this need.
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 for engagement 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 Governments
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 a number of issues, including air quality and greenhouse gas (GHG) emissions, environmental emergencies, and storage of chemicals or hazardous materials. ECCC stated that it did not provide specific advice on any species at risk identified as having the potential to interact with the Project because they are primarily under the responsibility of the Province of Alberta.
On air quality and direct GHG emissions during construction and operation of the Project, ECCC requested that NGTL confirm its data sources for GHG emission estimates, to quantify air pollutant emissions for the Project, and that NGTL describe how it will achieve its mitigation measures for reducing GHG emissions and air pollutant emissions.
TC Energy estimated that the annual upstream GHG emissions associated with the project will range from 0.412 to 0.557 megatonnes (Mt) CO2 equivalent range for its first year of operation in 2022, and in the range of 0.443 to 0.561 Mt CO2 equivalent by 2047. The Commission noted that the Project's direct GHG emissions are small, estimated to be 14.5 kilotonnes CO2 equivalent, which amounts to 0.002 per cent of total GHG emissions in Canada and 0.005 per cent of total provincial GHG emissions. TC Energy stated that the primary sources of combustion emissions will be from construction-related activities associated with fuel use, the operation of heavy equipment, and burning of slash, as there are no permanent components or activities related to combustion proposed.
TC Energy stated that the variability in the estimates over time can be explained by the projected changes in gas supply over time, consideration for GHG and climate change policies, and differences in methodological approaches.
ECCC recommended that NGTL base emergency response and spill/release plans on potential accidents and malfunctions, site-specific conditions and sensitivities, as well as the assumption that a catastrophic incident is likely to occur during the lifespan of the Project. ECCC also recommended that NGTL commit to developing mitigation strategies, contingency plans and response capabilities commensurate with the Project's environmental risk.
The CER has a comprehensive regulatory regime in place that considers ECCC's recommendations; NGTL would be subject to this regime. The Commission recommended Conditions 8, 9, and 14 for the section 52 pipeline and related facilities, requiring NGTL to file a detailed construction schedule and updates. The conditions also address safety procedures and emergency response plans.
Natural Resources Canada
In comments on the draft conditions, Natural Resources Canada (NRCan) stated that Indigenous peoples have raised concerns about the need to ensure that Indigenous knowledge is considered appropriately and Aboriginal rights and interests are better protected over the lifecycle of projects, in particular as it pertains to monitoring. NRCan stated that conditions requiring a project proponent to demonstrate its engagement with Indigenous peoples on relevant plans or processes, and how this is incorporated in those plans, can be an effective means to ensure that Indigenous views are meaningfully considered.
Alberta Department of Energy
The Alberta Department of Energy (DoE) submitted that the Project will provide important access to demand markets, which is urgently required to support the Canadian natural gas industry, attract investment and sustain and create good-paying jobs for Albertans. The DoE agreed that there is a clear need for the increased capacity that the Project will provide.
Indigenous Involvement in the CER Hearing
In March 2019, the Commission wrote to 29 Indigenous groups potentially affected by the Project to advise them of the Project description filed on January 8, 2019. On May 31, 2019, the Commission issued the Notice of Hearing and Application to Participate, as well as information on the opportunity to comment on the Preliminary List of Issues and Scope of Factors of the 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 August 27, 2020. The Commission received and considered 21 Applications to Participate from Indigenous peoples, and granted standing to participate in the proceeding according to each applicant's request, allocating a total of $1,360,000 in funding to 20 Indigenous groups who were Intervenors to help them to participate in the Hearing process (the other Indigenous group was a commenter and did not qualify for participant funding).
The Commission 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 groups, and provided opportunities for meaningful participation of Indigenous groups.
The 20 Indigenous Intervenors who participated in the Hearing process expressed concerns regarding the Project that includes the following categories: i) NTGL's engagement with Indigenous peoples; ii) the Government of Canada's consultation process with Indigenous peoples; iii) environmental and socio-economic assessment methodology; iv) Project effects on rights and interests of Indigenous peoples; v) potential impacts of the Projects on Indigenous groups, including on social and cultural well-being, human health, employment and benefits, traditional land and resource use, and environmental effects, and; vi) emergency management.
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 22, requiring NGTL to file a plan describing the participation of Indigenous peoples in monitoring activities during and post 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 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 19, 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. 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 27 potentially impacted Indigenous groups. The Crown determined that, although it did not have a legal duty to consult with five Indigenous groups, it would continue to meet and engage with them on a policy basis to obtain information about the groups' interest in and potential concerns with the Project.
On December 9, 2020, the Crown held an information session on the CER Report which CER staff, NGTL, ECCC and more than 23 Indigenous groups attended.
On February 5, 2021, the GIC, by Order in Council P.C. 2021-0043, extended the statutory time limit for its decision until June 19, 2021, to provide more time for consultations in the context of the COVID-19 pandemic and to ensure that consultations with Indigenous groups were meaningful and were carried out in a manner that upholds the honour of the Crown. The Crown conducted supplementary consultations between November 2020 and April 20, 2021.
Throughout the process, the Crown engaged with Indigenous groups, through more than 60 meetings, and 19 Indigenous groups were provided funding to participate in Crown consultations.
Canada sought to work with potentially impacted Indigenous 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 section 35 rights and Indigenous 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:
- 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 advance reconciliation with Indigenous peoples;
- 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
- 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 with 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 Accommodation Report (CCAR).
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 supplementing the conditions in Appendix I of the Commission's Report by adding one new condition, as follows:
1. New Condition 25: Support for Indigenous Groups to Review NGTL Filings Related to Conditions
Condition 25 requires NGTL to:
- offer funding to Indigenous groups to support their review of NGTL's filings related to conditions and to report to the Commission on discussions it has had with Indigenous groups regarding filings related to conditions and discussions on funding requirements to support the review of filings related to conditions; and,
- provide a list of Indigenous peoples who have expressed an interest in receiving a copy of filings related to conditions and a list of those filings.
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 it 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 CEAA, 2012.
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 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 commitments of NGTL, the Commission's conditions, the proposed new condition, and existing government programs and policies are capable of addressing the potential impacts to section 35 rights and Indigenous interests.
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, the assessment of upstream emissions, 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:
- (a) in order to adequately discharge Canada's duty to consult and to accommodate outstanding concerns of Indigenous groups, adds the condition set out in the annexed schedule to the conditions set out in Appendix I of the Commission of the Canadian Energy Regulator's report of November 19, 2020, entitled Canada Energy Regulator Report – NOVA Gas Transmission Ltd. – GH-001-2019, as set out in the annexed schedule;
- (b) pursuant to subsection 54(1) of the National Energy Board Act, directs the Commission of the Canadian Energy Regulator to issue Certificate of Public Convenience and Necessity GC-133 to NOVA Gas Transmission Ltd., in respect of the proposed construction and operation of the Edson Mainline Expansion Project in Alberta, subject to the conditions set out in Appendix I of the Commission of the Canadian Energy Regulator report of November 19, 2020, entitled Canada Energy Regulator Report – NOVA Gas Transmission Ltd. – GH-001-2019, and the additional condition referred to in paragraph (a); and,
- (c) pursuant to subsection 31(1) of the Canadian Environmental Assessment Act, 2012, decides that, taking into account the implementation of the mitigation measures set out in the conditions referred to in paragraphs (a) and (b), the Edson Mainline Expansion Project is not likely to cause significant adverse environmental effects, and directs the Commission of the Canadian Energy Regulator to issue a decision statement concerning that Project.
For more information, please contact Chris Evans, Senior Director, Pipelines, Gas and Liquefied Natural Gas Division, Strategic Petroleum Policy and Investment Office at 343‑292‑6521.