Canada Gazette, Part I, Volume 156, Number 49: ORDERS IN COUNCIL

December 3, 2022

DEPARTMENT OF NATURAL RESOURCES

CANADIAN ENERGY REGULATOR ACT

Order — Certificate GC-134 to NOVA Gas Transmission Ltd., in respect of the proposed construction and operation of the West Path Delivery 2023 Project in Alberta

P.C. 2022-1248 November 25, 2022

Whereas, on May 29, 2020, NOVA Gas Transmission Ltd. (“NGTL”) submitted a project notification to the Canadian Energy Regulator (“CER”) indicating its intention to apply, in accordance with section 182 of the Canadian Energy Regulator Act (“CER Act”), for a certificate in respect of the proposed construction and operation of the West Path Delivery 2023 Project (“Project”) in Alberta, consisting of approximately 40 km of new natural gas pipeline and associated facilities;

Whereas, on August 5, 2020, the CER, acting as Crown Consultation Coordinator (“Crown Consultation Coordinator”), wrote to Indigenous groups potentially impacted by the Project to initiate early engagement and Crown consultations on the Project;

Whereas, on October 22, 2020, NGTL submitted the application for a certificate for the Project in accordance with section 182 of the CER Act;

Whereas, on November 25, 2020, the Commission of the CER (“Commission”) 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 17 Indigenous groups applying to participate as intervenors and being granted intervenor status in the hearing, including 7 who shared oral Indigenous knowledge;

Whereas the Crown Consultation Coordinator consulted with 25 Indigenous groups and 20 of those Indigenous groups were allotted funding to participate in Crown consultations and the Commission’s hearing;

Whereas, having determined that NGTL’s application was complete, the Commission issued Hearing Order GH-002-2020 on April 30, 2021;

Whereas, on September 9, 2021, and from November 9 to 12, 2021, the Commission held virtual oral Indigenous knowledge sessions 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, on November 16, 2021, the Crown Consultation Coordinator filed a Crown Submission describing information shared during engagement and consultation activities, for consideration by the Commission in its Project recommendation;

Whereas, on May 24, 2022, having completed the hearing in accordance with the CER Act and other applicable legislation, the Commission submitted its recommendations, including proposed conditions, in a report on the Project entitled Canada Energy Regulator Report – NOVA Gas Transmission Ltd. – GH-002-2020 (“Commission’s Report”) to the Minister of Natural Resources, under section 183 of the CER Act;

Whereas the Commission is of the view that the Project would likely create economic benefits — including incremental capability to accommodate growth in both domestic gas production and export; important economic and employment opportunities for local and Indigenous individuals, communities, and businesses; and resultant federal and provincial tax revenues and property taxes paid to the municipal districts involved — and the Commission is also of the view that the opportunities and benefits of the Project come at the expense of further, albeit minimal, modifications to the landscape in the region, which may affect the ability of Indigenous groups to access Crown land for the exercise of rights and traditional practices;

Whereas, the Commission concluded that the Project is and will be required by present and future public convenience and necessity and is in the public interest and recommended that the Governor in Council direct by Order under section 186 of the CER Act that a certificate be issued to NGTL for the construction and operation of the Project, subject to 34 conditions as set out in Appendix II of the Commission’s Report;

Whereas, the Commission also considered the requirements under section 79 of the Species at Risk Act and section 82 of the Impact Assessment Act in relation to the portion of the Project that crosses federal lands at Bar U Ranch National Historic Site and has concluded that, with the implementation of NGTL’s environmental protection procedures and mitigation measures, as well as the conditions set out in Appendix II of the Commission’s Report, the Project’s effects on species at risk are lessened and where possible avoided and, for purposes of section 82 of the Impact Assessment Act, the carrying out of the Project is not likely to cause significant adverse environmental effects;

Whereas, the Commission considered the views, interests and concerns of Indigenous groups participating in the hearing, including through the use of oral Indigenous knowledge, as well as the views, interests and concerns of Indigenous groups that participated in consultation activities undertaken by the Crown Consultation Coordinator prior to and during the hearing, and considered impacts on the rights and interests of Indigenous groups and the proposed measures to avoid or mitigate those impacts;

Whereas, considering the Crown Submission and other evidence on the hearing record, the Commission determined that the recommendation and decisions contained in the Commission’s Report were consistent with subsection 35(1) of the Constitution Act, 1982 and the honour of the Crown, and the Commission was satisfied that the consultation that had taken place to the date of the Commission’s Report with respect to the Project was adequate for the purpose of the Commission’s recommendation on the application as well as its consequential decisions;

Whereas, the Crown must fulfill its duty to consult and, if appropriate, accommodate potential outstanding impacts to rights recognized in section 35 of the Constitution Act, 1982;

Whereas, by Order in Council P.C. 2022-0881 of July 14, 2022, the Governor in Council granted an extension of the time limit to make an order under subsection 186(1) of the CER Act with respect to the Project to November 30, 2022;

Whereas, through the Crown Consultation and Accommodation Report Regarding the proposed NOVA Gas Transmission Ltd. — West Path Delivery 2023 Project (“Crown Consultation and Accommodation Report”), the Governor in Council has assessed the consultation and engagement efforts aimed at identifying and, where appropriate, addressing Project-related concerns and potential impacts on the rights of Indigenous groups, including rights recognized and affirmed by section 35 of the Constitution Act, 1982, raised by Indigenous groups during the consultation and engagement process, with a view to determining whether Canada has fulfilled its duty to consult;

Whereas, in the 2018 Tsleil-Waututh Nation (2018 FCA 153) 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 amend or 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 respond to or address outstanding Indigenous concerns raised during Crown consultations, and consistent with the Government’s commitment to reconciliation with Indigenous peoples, the Governor in Council is of the opinion that the amendments to the conditions set out in Appendix II of the Commission’s Report, in the manner set out in the annexed schedule, are appropriate;

Whereas, the Governor in Council — having considered the interests and Project-related concerns of Indigenous groups and the potential effects of the Project on rights recognized and affirmed by section 35 of the Constitution Act, 1982, as identified in the Crown Consultation and Accommodation Report and in independent submissions by certain Indigenous groups — is satisfied that the Crown consultation process undertaken offered meaningful dialogue with Indigenous groups consulted on the Project; has provided responses to address potential impacts on those section 35 Aboriginal or treaty rights, including by amending certain conditions set out in Appendix II of the Commission’s Report; and upholds the honour of the Crown;

And, whereas the Governor in Council, having considered the Commission’s assessment and recommendation with respect to the Project accepts that the Project, if implemented in accordance with the conditions set out in Appendix II of the Commission’s Report, as amended as set out in the annexed schedule to address the interests and concerns of potentially affected Indigenous groups and the potential impacts on their rights recognized and affirmed by section 35 of the Constitution Act, 1982, is required by the present and future public convenience and necessity and is in the Canadian public interest under the CER Act;

Therefore, Her Excellency the Governor General 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 any outstanding concerns of Indigenous groups, amends certain conditions set out in Appendix II of the Commission of the Canadian Energy Regulator’s Report of May 24, 2022, entitled Canada Energy Regulator Report – NOVA Gas Transmission Ltd. – GH-002-2020, and sets out in the annexed schedule those amended conditions; and
• (b) under subsection 186(1) of the Canadian Energy Regulator Act, directs the Commission of the Canadian Energy Regulator to issue certificate GC-134 to NOVA Gas Transmission Ltd., in respect of the proposed construction and operation of the West Path Delivery 2023 Project in Alberta, subject to the conditions set out in Appendix II of the Commission of the Canadian Energy Regulator’s report of May 24, 2022, entitled Canada Energy Regulator Report – NOVA Gas Transmission Ltd. – GH-002-2020, and the amended conditions referred to in paragraph (a).

Schedule to the Order in Council
NOVA GAS TRANSMISSION LIMITED (NGTL) WEST PATH DELIVERY 2023 PROJECT - CONDITION AMENDMENTS

Amendments to the Commission of the Canadian Energy Regulator’s conditions are bolded and underlined.

Condition 10. Employment, contracting, procurement, and training update

• a) NGTL must file with the CER at least 60 days prior to commencing construction, for Commission approval, an update on employment, contracting and procurement, carried out prior to the start of construction, that includes:
  • i. a summary of NGTL’s engagement efforts, including those performed by its Prime Contractor(s), with Indigenous peoples, as well as local, regional, community, and industry groups or representatives, and other diverse groups of people, regarding potential employment, contracting, and procurement opportunities on the Project for self-identified Indigenous peoples, women, or other diverse groups of people;
  • ii. a description of the anticipated opportunities for employment, contracting and procurement for the Project, including for self-identified Indigenous peoples, women, other diverse groups of people, and local individuals and/or businesses;
  • iii. a description of the measures NGTL will use to ensure self-identified Indigenous peoples, women, other diverse groups of people, and local individuals and/or businesses can take advantage of these employment, contracting and procurement opportunities, including diversity and cultural inclusion measures specific to employment, contracting and procurement opportunities for Indigenous peoples; and
  • iv. a description of the oversight measures NGTL will use to ensure that its Prime Contractor(s) are adhering to NGTL’s Equal Employment Opportunity and Non Discrimination Policy, its Supplier Diversity and Local Participation Policy, as well as any other policies and procedures that encourage safety, responsibility, integrity, diversity, inclusion and fair employment, including cultural sensitivity training informed by, where possible, local Indigenous community trainers or resources that is specific to Indigenous Peoples, to be provided to project workers, to foster the well-being of NGTL’s workers, nearby communities, and Indigenous peoples.
• b) NGTL must also file with the CER at least 60 days prior to commencing construction, an update on training, carried out prior to the start of construction, that includes:
  • i. a summary of NGTL’s engagement efforts, including those performed by its Prime Contractor(s), with Indigenous peoples, as well as local, regional, community, and industry groups or representatives, and other diverse groups of people, regarding potential training opportunities on the Project for self-identified Indigenous peoples, women, or other diverse groups of people;
  • ii. a description of the anticipated opportunities for training for the Project, including for self-identified Indigenous peoples, women, other diverse groups of people, and local individuals and/or businesses; and
  • iii. a description of the measures NGTL will use to ensure self-identified Indigenous peoples, women, other diverse groups of people, and local individuals and/or businesses can take advantage of these training opportunities, including diversity and cultural inclusion measures specific to training opportunities for Indigenous peoples.
• c) NGTL must also provide a copy the filing to all those who have expressed an interest in receiving a copy; and NGTL must, within seven days of the filings in a) and b), provide confirmation to the CER that it provided those copies.

Condition 29. Employment, contracting, procurement, and training report

• a) NGTL must file with the CER, within three months from the date that the last Project component commences operation, a report on all employment, contracting, procurement, and training since the start of construction for the Project that must include, but is not limited to:
  • i. a summary of NGTL’s engagement efforts, including those performed by its Prime Contractor(s), carried out for the Project with self-identified Indigenous peoples, local, regional, community, and industry groups or representatives, and other diverse groups of people regarding potential employment, contracting, and procurement opportunities on the Project;
  • ii. The results of the employment, contracting, and procurement efforts for self-identified Indigenous Peoples and/or Indigenous businesses, women, and local individuals and/or businesses. The results reported must include but not be limited to the following in aggregate:
    • the total hours worked and the relevant categories or fields of employment for each of the following: 1) self-identified Indigenous Peoples; 2) women; and 3) local individuals;
    • the total labour spent (based on hourly labour costs and hours worked) for: 1) self-identified Indigenous peoples; 2) women; and 3) local individuals hired;
    • the total value of contracts awarded and the relevant categories or areas of businesses or services for each of the following: 1) self-identified Indigenous Peoples; 2) Indigenous businesses.
  • iii. a summary of NGTL’s engagement efforts, including those performed by its Prime Contractor(s), carried out with self-identified Indigenous peoples, regional, community, and industry groups or representatives, and other diverse groups of people regarding potential training opportunities, including any training needs, identified for the Project; and
  • iv. the results for the Project for training, including a description of how NGTL supported those self-identified Indigenous Peoples and/or Indigenous businesses, women, and local individuals and/or businesses. The results reported must include but not be limited to:
    • the type and duration of training provided to: 1) self-identified Indigenous peoples; 2) women; 3) local individuals; 4) Indigenous businesses; and 5) local businesses;
    • the certification or qualification, if any, attained at the completion of the training; and
    • how the training provided addressed training needs identified in a) iii for each of: 1) self-identified Indigenous peoples; 2) women; 3) local individuals; 4) Indigenous businesses; and 5) local businesses.
• b) NGTL must also provide a copy of this report to all those who have expressed an interest in receiving a copy; and NGTL must, within seven days of the filing in a), provide confirmation to the CER that it provided those copies.

Condition 26. Post-Construction Monitoring Plan for Indigenous peoples

• a) NGTL must file with the CER, within 45 days after the date NGTL files its first Leave to Open application, a plan describing participation by Indigenous Peoples in monitoring activities during post-construction of the Project. Activities may include monitoring the Project’s potential adverse effects on: the rights of Indigenous peoples; the environment; heritage resources; areas related to traditional land and resource uses; and areas of cultural significance. The plan must include:
  • i. a summary of engagement and planning activities undertaken with Indigenous peoples to develop opportunities for their participation in monitoring activities;
  • ii. a description of how the results from its engagement with Indigenous Peoples were incorporated into the plan, including existing community based monitoring programs, such as the Piikani Nation Bio-Cultural Monitoring Program, or an explanation as to why any results have not been incorporated;
  • iii. a list of the Indigenous Peoples that have reached agreement with NGTL to participate as monitors;
  • iv. a description of the anticipated training and participant requirements, including potential certifications;
  • v. the scope, methodology, and justification for monitoring activities to be undertaken by NGTL and each participant identified in a) iii., including those elements of postconstruction and operation, and geographic locations that will involve monitor(s);
  • vi. a description of how NGTL will use the information gathered through the participation of monitors; and
  • vii. a description of how NGTL will provide the information gathered through the participation of monitors to the participating Indigenous community.
• b) NGTL must provide a copy of the plan to those Indigenous Peoples who have expressed an interest in receiving a copy; and NGTL must, within seven days of the filing in a), provide confirmation to the CER that it provided those copies.

Condition 32. Post-Construction Environmental Monitoring Reports

• a) NGTL must file with the CER, on or before 31 January following each of the first, third, and fifth complete growing seasons after completing final clean-up of the last Project component, a Post-Construction Environmental Monitoring Report that:
  • i. describes the methodology used for monitoring, including where relevant the methodology described pursuant to Condition 26, and the criteria established for evaluating success and the results found;
  • ii. identifies any modifications to the criteria established for evaluating reclamation success described in its updated EPPs, as approved by the Commission, and the rationale for any modifications;
  • iii. identifies the issues to be monitored, including unexpected issues that arose during construction, and their locations (for example, on a map or diagram, in a table);
  • iv. describes the current status of the issues (resolved or unresolved), any deviations from Commission-approved plans, and corrective actions undertaken;
  • v. assesses the effectiveness of the mitigation measures, both planned and corrective, applied against the criteria for success;
  • vi. includes a detailed summary of NGTL’s consultation undertaken with the appropriate provincial and federal authorities, and affected Indigenous communities, including any feedback received from affected Indigenous communities regarding the effectiveness of the mitigation measures;
  • vii. provides proposed measures and the schedule that NGTL would implement to address ongoing issues or concerns; and
  • viii. includes an evaluation of the effectiveness of access control measures.

The report must include, but is not limited to, information specific to the effectiveness of mitigation applied to minimize adverse effects, including NGTL’s mitigation aimed at minimizing contributions to adverse cumulative effects, on the exercise of Section 35 rights, soils, weeds, watercourse crossings, wetlands, rare plants, wildlife and wildlife habitat, and wildlife species at risk and of special concern.

• b) For areas where Foothills rough fescue grassland was disturbed, in addition to the reporting schedule described above, NGTL must file with the CER, on or before 31 January following the tenth complete growing season after completing final cleanup of the last Project component, a Post-Construction Environmental Monitoring Report that meets the relevant objectives described in part a). This report must also describe where the Foothills rough fescue grassland stands on its trajectory towards the reclamation goals described in the post-construction monitoring reports, describe how the outcomes arising from consultation with Indigenous Peoples and other parties were considered, and provide details on any corrective actions as needed.
• c) NGTL must also provide a copy of the report to all Indigenous Peoples and impacted landowners who have expressed an interest in receiving a copy (through ongoing engagement); and NGTL must, within seven days of the filing in a), provide confirmation to the CER that it provided those copies.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

This Order in Council, pursuant to subparagraph 186(1)(a)(ii) of the Canadian Energy Regulator Act (CER Act), directs the Commission of the Canada Energy Regulator (CER or Commission) to issue a certificate to NOVA Gas Transmission Limited (NGTL, the Project proponent) for the West Path Delivery 2023 Project (the Project). This Order in Council also imposes the Commission’s 34 recommended conditions to the Project’s approval and amends four of these conditions.

Objective

This Project is a small expansion to the large existing NGTL natural gas distribution system in Alberta and serves key export markets in the United States Pacific Census Region, including Washington, Oregon, and California. This project would help to enhance market access for Canadian natural gas. Market access challenges have been exacerbating a wide price differential between Alberta’s natural gas spot prices and the U.S. benchmark price.

The Project would benefit Canadian gas producers and consumers across NGTL’s natural gas system, contributing to continental energy security while taking important environmental, health, and safety considerations into account. The Commission has recommended the imposition of 34 conditions on the Project proponent to ensure compliance with the CER Act and ensure that the public interest is met. The Governor in Council has amended four of these conditions to discharge the Crown’s duty to consult Indigenous groups, and to accommodate, where appropriate, any potential outstanding impacts to Indigenous groups’ section 35 Aboriginal and Treaty rights.

Background

NGTL is a wholly owned subsidiary of TC Energy, which operates a significant portion of Canada’s interprovincial natural gas pipeline infrastructure. NGTL operates a network of approximately 25 000 km of natural gas pipelines in Western Canada that connect upstream natural gas producers with downstream domestic and international markets.

On October 22, 2020, NGTL filed an application with the Canada Energy Regulator seeking a certificate for the Project under section 182 of the CER Act. An application made under this section of the CER Act requires the Commission to make a recommendation to the Governor in Council on whether to issue such a certificate.

The Project

The $355.5 million Project consists of approximately 40 km of looped natural gas pipeline in three different sections, as well as associated facilities in Southwest Alberta. The Project is part of TC Energy’s West Path Delivery Program, a combined $1.2 billion expansion of its NGTL and Foothills Systems in Southwest Alberta and Southeast British Columbia (B.C.).

Approximately 35.4 km (90%) of the proposed pipeline route parallels existing NGTL right-of-way or other existing linear disturbances such as pipelines, roads, and electrical transmission lines. Of the total pipeline length, 89% (approximately 34 km) of land parcels crossed would be private freehold land and 11% (approximately 5 km) would be on provincial or federal Crown land.

Commission’s Recommendation Report

The Commission assessed the Project application, which was filed on October 22, 2020. Further to a written and oral hearing process, on May 24, 2022, the Commission submitted its Recommendation Report on the Project, entitled “Canada Energy Regulator Report - Nova Gas Transmission Ltd. - GH-002-2020” (the Recommendation Report), to the Minister of Natural Resources. In the Recommendation Report, the Commission found that the Project is in the public interest and will be required by the present and future public convenience and necessity and is consistent with the requirements of the CER Act.

Accordingly, the Commission recommended that the Governor in Council direct that a certificate be issued under section 186 of the CER Act for the construction and operation of the Project, subject to 34 binding conditions. The conditions cover, among other things, construction activities, safety measures and standards, impact mitigation, environmental monitoring, climate change mitigation, and matters related to Indigenous groups. The Commission also made two recommendations beyond the Commission’s mandate.

Pursuant to subsections 186(1) and 186(3) of the CER Act, the Governor in Council must act on the Commission’s Recommendation within 90 days, and either direct the Commission to issue a certificate, dismiss the application, or refer the recommendation or any of the conditions back to the Commission for reconsideration. The Governor in Council may, under subsection 186(3) of the CER Act, on the recommendation of the Minister of Natural Resources, extend the 90-day time limit by any additional period of time.

On July 14, 2022, by Order in Council P.C. 2022-0881, on the recommendation of the Minister of Natural Resources, the Governor in Council extended the legislated time limit for the Project decision from August 22, 2022, to November 30, 2022. This enabled additional time for Canada to complete meaningful consultations with potentially impacted Indigenous groups on potential outstanding Project impacts.

Implications

In its assessment, the Commission considered the List of Issues determined for the hearing as well as the views and concerns of Indigenous groups with respect to the potential impacts of the Project on their Aboriginal and Treaty rights as recognized and affirmed under section 35 of the Constitution Act, 1982, all in accordance with applicable Acts and policies.

Legal framework

The Commission assessed the Project in accordance with the CER Act and relevant provisions of other applicable legislation, including section 79 of the Species at Risk Act and section 82 of the Impact Assessment Act (IAA). The Commission considered potential impacts to Aboriginal and Treaty rights, including whether the potential impacts to section 35 rights would be mitigated or accommodated, if appropriate, by the mitigation and commitments of NGTL, and the Commission’s conditions and recommendations. The Commission determined that the recommendation and decisions contained in the Recommendation Report are consistent with section 35 of the Constitution Act, 1982 and the honour of the Crown.

This is the first project seeking a Governor in Council decision under the new CER Act, which came into force in 2019 as part of Bill C-69, introducing a new legislative regime for how major infrastructure projects, including federally regulated pipelines, are reviewed and approved. Under this framework, decisions are made in the spirit of protecting the environment, advancing reconciliation with Indigenous peoples, and providing certainty for project proponents doing business in Canada. The new approach includes early and inclusive engagement and enhanced opportunities and support for Indigenous groups to participate in transparent decisions on major projects. For the West Path Delivery 2023 Project, the CER is the Crown Consultation Coordinator (CCC) and is responsible for consulting with Indigenous groups as the Crown on behalf of Canada.

Economic impacts

The Project is expected to benefit Canada’s economy by providing access to export markets for Canadian natural gas and giving producers the ability to compete for downstream market share — providing employment opportunities for local and Indigenous people, communities, and businesses, and securing revenues for various levels of government.

The Commission found that there is adequate supply and markets available to support the Project. NGTL has stated that the Project is driven primarily by Western Canada Sedimentary Basin producers seeking increased access to export markets and the ability to compete for downstream market share in growing United States markets. The Project would increase design capability at the Alberta/British Columbia (ABC) Border Export Point by an incremental addition of 175 terajoules per day. This could provide natural gas producers with stability and higher returns on the sale of natural gas produced. NGTL has also stated that the commercial need for the Project is affirmed by customers having signed long-term contracts for firm delivery transportation services that exceed the capacity of the current ABC Border Export Point.

NGTL expects the Project would increase Alberta’s gross domestic product (GDP) by approximately $80 million during construction, with the total economic impact on Alberta expected to be $181 million in GDP and $117 million in labour income. Direct and indirect employment is expected to be 1 161 full-time jobs during construction. Project development and construction is estimated to generate tax revenues of about $4.2 million federally and $6.2 million provincially. During operations, the Project would contribute approximately $450,000 per year in combined property taxes to Foothills County, the Municipal District of Pincher Creek, the Municipal District of Ranchland, and the Municipality of Crowsnest Pass, all in Alberta.

In the Project application, NGTL estimated the Project would result in community investment, capacity funding, contracting and procurement opportunities, and training for local and Indigenous people, communities and businesses. NGTL would seek to maximize opportunities for Indigenous businesses and individuals to benefit from the construction contracts and jobs that would be required for the Project. NGTL stated that based on its experience with past projects, Indigenous businesses generally represent 8 to 12% of the total construction contract values for projects in Alberta, and Indigenous people typically make up approximately 8 to 10% of the total construction workforce.

To increase the transparency of NGTL’s commitments regarding contracting and employment opportunities, the Commission would impose Condition 10, which requires NGTL to submit publicly available information on NGTL’s efforts to provide training, employment and contracting opportunities to Indigenous peoples who may be affected by the Project.

The Commission would further impose Condition 29, which would require NGTL to file a post-construction report on all employment, contracting, procurement, and training.

Requirements under the Species at Risk Act (SARA)

NGTL identified species at risk and species of management concern with potential to occur within the Regional Assessment Area for the Project, including at risk species listed on Schedule 1 of SARA. There is no designated critical habitat for SARA-listed threatened and endangered species at risk within the Regional Assessment Area.

The Commission also considered the requirements under section 79 of SARA and section 82 of the IAA in relation to the portion of the Project that crosses federal lands at Bar U Ranch National Historic Site.

Based on its findings and evidence from participants, the Commission would impose six conditions aimed at protecting the environment, including species at risk (Conditions 3, 7, 17, 24, 32 and 33).

In compliance with SARA, the CER notified the Minister of the Environment regarding at-risk species.

Watercourse crossings

NGTL’s application indicates that the Project would result in 22 watercourse crossings and would cross 8 drainages.

The Commission concluded that NGTL’s proposed watercourse crossing methods and mitigation measures would ensure that the proposed watercourse crossings are constructed safely, with minimal risk to the environment. The Commission was of the view that with NGTL’s proposed mitigation measures and the Commission’s conditions (Conditions 7 and 32), the potential adverse effects of the Project on watercourse crossings are not likely to be significant.

Safety of the pipeline and facilities

The Commission assessed and tested evidence related to project design and potential safety risks, considering all the hazards and potential hazards 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. 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 lifecycle.

Some Indigenous groups raised concerns with acid rock drainage during construction and the potential safety impacts this drainage poses to water and communities. Therefore, the Commission would impose Condition 14, which would require NGTL to develop an Acid Rock Drainage Management Plan prior to commencing construction.

Consultation

CER hearing process

Thirty-two registrations to participate in the hearing for the Project were received and considered, including from 17 Indigenous groups, 5 commercial parties, 2 federal government departments, one provincial government department, 5 individuals, and 2 landowner groups. Four parties participated in the hearing as commenters, while the rest participated as intervenors.

Indigenous involvement in the CER Commission’s hearing

In August 2020, the CER wrote to Indigenous groups potentially affected by the Project to advise them of the Project Notification filed on May 29, 2020. The purpose of the letter was to initiate early Crown consultation activities with groups that may be impacted by the Project, to allow adequate time to share information, and to better understand concerns regarding potential impacts.

On November 25, 2020, the Commission issued the Notice of Hearing and Application to Participate, 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 April 30, 2021, to March 4, 2022. The Commission received and considered 17 Registrations to Participate from Indigenous groups and granted standing to participate in the proceeding according to each applicant’s request. The Commission provided all Indigenous intervenors the opportunity to provide oral Indigenous knowledge to the Commission virtually on September 9, 2021, and from November 9 to 12, 2021. Seven Indigenous groups shared oral Indigenous knowledge.

In its May 2022 Recommendation Report, the Commission set out its understanding of the constitutional and statutory framework in which it must perform its duties and exercise its powers, and in doing so, must come to a determination as to whether its recommendation and decisions are consistent with section 35 of the Constitution Act, 1982. The Commission found that NGTL designed and implemented appropriate Indigenous engagement activities for the Project. It also found that the hearing process provided opportunities for meaningful participation of Indigenous groups, by inviting them to submit written evidence and share oral Indigenous knowledge about how the Project would impact Aboriginal and Treaty rights, which was fully considered by the Commission.

The 17 Indigenous intervenors who participated in the hearing process expressed concerns with the Project under the following categories: (i) general project-related concerns; (ii) the monitoring of NGTL’s system and regional cumulative effects; (iii) social and cultural well-being; (iv) human health; (v) heritage resources; (vi) employment, training and community benefits; (vii) Crown consultation approach; (viii) monitoring by Indigenous peoples; (ix) traditional land and resource use; (x) subsection 35(1) of the Constitution Act, 1982; (xi) environmental effects; and (xii) safety and emergency response.

The Commission was of the view that there was adequate consultation and accommodation with Indigenous groups for the purpose of the Commission’s recommendation and decisions on the Project. It was also of the view that any potential Project impacts to the rights and interests of affected Indigenous groups, after mitigation, were not of high significance and would be effectively addressed through the proponent’s mitigations and commitments, and the conditions that would be imposed.

To address potential impacts on section 35 rights and interests of Indigenous groups, the Commission would impose several conditions. For example, Condition 12 would require NGTL to file a plan describing the participation of Indigenous groups in monitoring activities during construction; Condition 13 would require NGTL to submit a report, prior to construction, on any outstanding traditional land and resource use investigations for the Project; and Condition 16 would require NGTL to file an engagement report related to pre-construction harvesting by Indigenous peoples. Other conditions relating to Indigenous groups include Conditions 9, 10, 15, 18, 20, 26 and 29, which can be reviewed in the Commission’s Recommendation Report.

Crown consultations with Indigenous peoples

Canada has a legal duty to consult and, if appropriate, accommodate, when it contemplates conduct that might adversely impact Indigenous groups’ Aboriginal and Treaty rights, such as the approval of the Project.

On August 5, 2020, prior to NGTL’s filing of the application of the Project, the CER initiated Crown–Indigenous consultations. While developing the consultation objectives and approach for the Project, the CER, in its role as the Crown Consultation Coordinator (CCC), 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 its 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 mitigations and accommodations, if 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 Indigenous group, and to the known concerns with the Project. The CCC relied on the Commission’s public hearing process as the primary forum for consultation with Indigenous groups. The CCC acknowledged that the Commission has the technical expertise and mandate to consider and address the Project’s impacts, including those affecting the rights and interests of Indigenous groups. To this end, the CCC encouraged Indigenous groups to participate in the Commission’s hearing process.

The CCC supported the Crown’s duty to consult by conducting consultation activities with 25 potentially impacted Indigenous groups on the Crown List from August 2020 to October 2022. In the context of the COVID-19 pandemic, the CCC met with most of these Indigenous groups virtually or via telephone at the start of consultations in a virtual format to introduce themselves, to discuss the potential time frames for consultations and the hearing process, and to begin dialogue on any potential project-specific impacts, concerns, or questions.

On November 16, 2021, the CCC filed a Crown Submission to the Commission that described the consultation activities it had undertaken, a summary of the information gathered during consultation activities with Indigenous groups, and the specific mitigations, recommendations, and potential accommodation measures for the Commission’s consideration, in support of the Commission’s assessment of the Project. Considering this Crown Submission and other evidence on the hearing record, the Commission found that there had been adequate consultation and accommodation to that date for the purpose of the Commission’s recommendation to the Governor in Council and its own determinations on the Project.

After the conclusion of the Commission’s assessment process and the issuance of its Recommendation Report on May 24, 2022, the CCC continued to engage with Indigenous groups, with some meetings being in person, to understand any potential outstanding impacts to section 35 Aboriginal and Treaty rights. Further, the CCC discussed with Indigenous groups the Commission’s Recommendation Report, proposed conditions, the two recommendations beyond the Commission’s mandate, and how any outstanding impacts could reasonably be avoided, mitigated, or accommodated.

Further details on the Crown consultation process and Indigenous groups’ concerns can be found in the publicly available Crown Consultation and Accommodation Report (CCAR) completed in October 2022. The CCAR builds upon the Crown Submission and includes Crown consultation activities before and after the Commission’s Recommendation Report.

Amendments to Project certificate conditions

To discharge the Crown’s duty to consult Indigenous groups, and where appropriate, to accommodate potential outstanding impacts to Indigenous groups’ section 35 Aboriginal and Treaty rights, Canada is modifying the conditions in Appendix II of the Commission’s Report by amending certain conditions. The amendments to Conditions 10 and 29 are intended to address concerns raised by Indigenous groups during Crown consultations about economic opportunities. The amendments to Conditions 26 and 32 are intended to address concerns raised about cumulative effects and the inclusion of Indigenous peoples in monitoring and reporting on the Project.

• 1. Amended Condition 10: Employment, contracting, procurement, and training update. Requires NGTL to, among other provisions, provide a description of the measures NGTL will use to ensure self-identified Indigenous peoples and/or Indigenous businesses, women, other diverse groups of people, and local individuals and/or businesses can take advantage of these opportunities, including diversity and cultural inclusion measures specific to employment, contracting and procurement opportunities for Indigenous peoples, as well as cultural sensitivity training informed by Indigenous peoples.
• 2. Amended Condition 26: Post-Construction Monitoring Plan for Indigenous peoples. Requires NGTL to, among other provisions, provide a summary of the engagement and planning activities undertaken with Indigenous peoples to develop opportunities for their participation in monitoring activities; and how the results from its engagement were incorporated into the plan, including existing community-based monitoring programs.
• 3. Amended Condition 29: Employment, contracting, procurement and training report. Requires NGTL to, among other provisions, file the results of the employment, contracting and procurement, and training efforts for self-identified Indigenous peoples and/or Indigenous businesses, women, and local individuals and/or businesses, and a description of how NGTL supported these groups.
• 4. Amended Condition 32: Post-Construction Environmental Monitoring Reports. Requires NGTL to, among other provisions, file a Post-Construction Environmental Monitoring Report that includes a detailed summary of NGTL’s consultation undertaken with the appropriate provincial and federal authorities, and affected Indigenous groups, including any feedback received from affected Indigenous groups regarding the effectiveness of the mitigation measures.

Commercial parties

The Canadian Association of Petroleum Producers (CAPP), a major industry association, strongly supports this Project, as it agrees it would provide required access to export markets for CAPP members and other NGTL shippers. CAPP was the only commercial party to make a submission to the Commission’s hearing process.

Landowners and land users

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.

During the Commission’s hearing process, landowners raised several concerns associated with potential Project impacts on the environment, wildlife, and fish habitat. The Commission found that NGTL’s environmental mitigations and commitments, combined with conditions such as Conditions 7, 23, 24 and 32, would ensure that the Project is unlikely to cause significant adverse environmental effects and impacts.

The West Path Landowners Committee of the Canadian Association of Energy and Pipeline Landowners Associations (CAEPLA-WPLC) raised concerns including NGTL’s construction methodology and acquisition of land use. During the hearing process, CAEPLA-WPLC and NGTL reached a settlement regarding landowner issues. CAEPLA-WPLC continued as an intervenor for the purposes of monitoring and provided final argument.

Federal and provincial governments

Environment and Climate Change Canada (ECCC) participated in the Commission’s hearing process as a commenter. As an expert department, ECCC filed information that relates to several issues, including air quality and greenhouse gas (GHG) emissions. ECCC stated that since the construction phase of the Project involves the use of heavy-duty diesel vehicles and construction equipment, it would result in emissions that may impact air quality for nearby communities during construction.

NGTL estimated that the annual upstream GHG emissions associated with the Project are less than 500 kilotonnes (kt) CO₂ equivalent per year (from 2023 through 2030). The Commission noted that the Project’s direct GHG emissions are small, estimated to be 178.2 kt CO₂ equivalent, which amounts to 0.024% of total GHG emissions in Canada and 0.065% of total provincial GHG emissions. The primary sources of emissions would be from construction-related activities associated with fuel use, which includes the operation of heavy equipment, land clearing, and burning of slash.

ECCC also recommended that NGTL align with the Strategic Assessment of Climate Change. This includes, among other provisions, quantifying net GHG emissions per year for each phase of the Project and providing a plan for the Project to achieve net-zero emissions by 2050.

The CER has a comprehensive regulatory regime in place that considers ECCC’s recommendations, to which NGTL would be subject. The Commission would impose Conditions 4, 21, 28 and 32 for the Project and related facilities, which would require NGTL to submit a GHG Emissions Mitigation Measures Plan, a detailed construction schedule, the quantification of construction-related GHG emissions, and a Net-zero GHG Emissions Plan.

The Parks Canada Agency intervened in the Commission’s hearing process as the federal land manager of the Bar U Ranch National Historical Site, which 0.9 km of the Project crosses. Parks Canada will need to issue a land use agreement under the Federal Real Property and Federal Immovables Act for the Project and decide on the significance of potential environmental effects, pursuant to section 82 of the IAA. The assessment is in progress and will be posted to the Canadian Impact Assessment Registry once complete.

Parks Canada is also the competent authority under SARA for any impacts on species at risk on the Bar U Ranch National Historic Site resulting from the Project. Based on its initial assessment, Parks Canada presented several conditions that could be included in a land use agreement for the Project, including measures to protect species at risk and migratory birds, and to lessen effects on the visitors, operations, and socioeconomics for the site.

The Alberta Department of Energy submitted that the Project would support the aggregate NGTL system demand, including the additional transportation commitments underpinning the Project. Furthermore, the Department stated that the Project would provide access to premium natural gas demand markets, including the Pacific Northwest and California markets, and provide opportunities for Western Canada Sedimentary Basin producers to diversify their market portfolios.

Contact

For more information, please contact Chris Evans, Senior Director, Pipelines, Gas and Liquefied Natural Gas Division, Fuels Sector, Natural Resources Canada, at 343‑292‑6521.