Lexpert Special Editions

16 | Regulation room to exercise some discretion. The NEB is charged with assessing Canadian domestic energy supply and ruling on "certificates of public convenience and necessity" for all energy exports and all transborder pipelines and power lines. But National Energy Board Act amendments announced by Finance Minister Jim Flaherty in his 2012 budget would enable Ottawa to transfer regulatory powers to provincial regulators in order to create a "one project, one review" regulatory system. The Harper government introduced its amendments to the NEB Act by way of the promotionally titled Jobs, Growth and Long-Term Prosperity Act. Amendments give the NEB 15 months from the receipt of a completed project application in which to conduct all necessary reviews and render its ruling. Subsection 11 (4) of the Act, as amended, reads: All applications and proceedings before the Board are to be dealt with as expeditiously as circumstances and considerations of fairness permit, but, in any case, within the time limits provided for under this Act, if there is one. [emphasis added.] Under the amended Act, the interveners' list is restricted to those "directly affected" and scope is narrowed to "all considerations that appear … to be directly related to the pipeline." But Robinson says amendments appear to provide the NEB with discretion to admit Ecojustice clients. "I think they would still be heard. If not, we would be in court." Most strikingly, the amended section 52 removes the power of the NEB to deny project applications on its own authority. The NEB must now make a recommendation to the Governor in Council (federal cabinet), leaving cabinet to decide whether to issue a certificate of public convenience and necessity. If the NEB recommends that a certificate be denied, it is now specifically required to include all conditions that would enable cabinet to reverse the NEB's recommendation and approve the project. "The federal cabinet will make the go/ no-go decisions on all major pipeline projects … informed by the recommendations of the National Energy Board," Joe Oliver told the House of Commons on May 2, 2012. "The ultimate decisionmaking should rest with elected members who are accountable to the people, rather than with unelected officials …." In the face of cabinet imprimatur, critics have suggested the Federal Court of Appeal might be loath to grant leave to appeal, much less go the ultimate step of overturning a project approval by cabinet. "It's hard to make broad predictions regarding the degree to which cabinet certificate decisions will be shown deference by the Federal Court of Appeal," says Lars Olthafer of Blake, Cassels & Graydon LLP. "I think it's safe to say we will all be in relatively uncharted waters." Block says simply that he would not hesitate to put that choice before the court by appealing a Lexpert®Ranked Lawyers Gill, Sony McCarthy Tétrault LLP (403) 206-5529 sgill@mccarthy.ca Mr. Gill has acted as counsel to public and private oil and gas producers, energy services companies and investment banks in a range of M&A transactions and debt and equity financings. He also advises on corporate governance and compliance matters. Gilliland, William G. Dentons Canada LLP (403) 268-6826 bill.gilliland@ dentons.com Gilmour, Bradley S. Bennett Jones LLP (403) 298-3382 gilmourb@ bennettjones.com Mr. Gilliland advises public and private companies domestically and internationally on M&A matters, primarily in the power, oil and gas and other resource sectors. He also counsels on financing, securities and governance issues. Mr. Gilmour's practice focuses on energy, environmental and Aboriginal law. He has significant experience with issues related to energy and natural resource projects including oil sands, pipelines, LNG, CCS, coal, hydro, chemical and renewable energy. Gorman, William (Bill) Goodmans LLP (416) 597-4118 wgorman@ goodmans.ca Mr. Gorman's practice focuses on domestic and cross-border corporate finance and M&A. He represents a number of public and private companies, private equity and underwriters in transactions involving the energy sector. Grant, QC, Bruce C. Stewart McKelvey (709) 570-8882 bgrant@ stewartmckelvey.com Grant, QC, Robert G. Stewart McKelvey (902) 420-3328 rgrant@ stewartmckelvey.com Mr. Grant's corporate/ commercial practice extends to energy and natural resources, financial services, M&A, project finance, real estate and construction law. His clients include oil refineries, construction and mining companies, and lenders. Mr. Grant's advocacy practice focuses on corporate commercial litigation and administrative law, including project approvals. He has a special interest in energy and regulated industries, particularly oil and gas. He is an ACTL fellow.

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