Canada Gazette, Part I, Volume 154, Number 44: ORDERS IN COUNCIL

October 31, 2020

DEPARTMENT OF THE ENVIRONMENT

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

Order Approving the Interim Order Modifying the Operation of the Passenger Automobile and Light Truck Greenhouse Gas Emission Regulations

P.C. 2020-830 October 23, 2020

Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subsection 163(3) of the Canadian Environmental Protection Act, 1999footnote a, approves the Interim Order Modifying the Operation of the Passenger Automobile and Light Truck Greenhouse Gas Emission Regulations, made by the Minister of the Environment on October 13, 2020.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

Pursuant to subsection 163(3) of the Canadian Environmental Protection Act, 1999 (CEPA), this Order approves the Interim Order Modifying the Operation of the Passenger Automobile and Light Truck Greenhouse Gas Emission Regulations (the Interim Order), made by the Minister of the Environment (the Minister) on October 13, 2020.

Objective

The purpose of the Interim Order is to correct the multiplier formula used to determine carbon dioxide (CO2) equivalent emission credits for advanced technology vehicles found in the Passenger Automobile and Light Truck Greenhouse Gas Emission Regulations (the Regulations) in the near term and to provide time for the Department of the Environment (the Department) to begin consultations on a regulatory amendment to permanently correct the formula in the longer term.

Background

The Regulations

The Regulations establish progressively more stringent greenhouse gas (GHG) emission standards for new light-duty on-road vehicles offered for sale in Canada beginning with model year 2011. The Regulations require importers and manufacturers of new vehicles to meet increasingly stringent fleet average GHG emission standards over the 2011–2025 model years through a CO2 equivalent emission credits system. Canada’s Regulations are aligned with those of the United States Environmental Protection Agency (U.S. EPA). The Regulations include provisions that establish compliance flexibilities designed to provide appropriate lead time for technological improvements and a smooth transition to a more stringent regulatory regime. These flexibilities include a system for obtaining, banking and transferring emission credits that can be used to offset emission deficits incurred.

Canada’s Regulations were established in a manner that is consistent with the authorities under CEPA. The differing authorities provided by U.S. and Canadian enabling legislation required some provisions of the U.S. EPA’s regulations to be replicated in Canada’s Regulations rather than incorporated by reference. This is the case for the provisions in Canada’s Regulations that authorize companies to elect to multiply the total number of advanced technology vehicles in their fleets, i.e. battery-electric vehicles, plug-in hybrid electric vehicles and fuel-cell vehicles, as well as natural gas dual fuel vehicles and dedicated natural gas vehicles by a prescribed factor. This provision is intended to create an incentive to support the deployment of these technologies by enabling companies to obtain additional credits through the use of technology-specific multipliers.

On April 23, 2020, the U.S. EPA published the Light-duty Vehicle Greenhouse Gas Program Technical Amendments (PDF) correcting the error. This correction to the formula applies retroactively beginning with the 2017 model year. Since the U.S. EPA formula is not incorporated by reference in Canada’s Regulations, a regulatory amendment is required to correct this error in Canada and to maintain alignment.

The Interim Order

CEPA provides the authority for an interim order to modify the operation of regulations governing emissions from vehicles for a period of up to one year in order to maintain alignment with those in another country. Pursuant to subsection 163(1) of CEPA, the Minister can issue an interim order to maintain alignment.

The Interim Order corrects the formula in the near term and quickly allows companies to obtain the intended number of credits for advanced technology vehicles sold in the country, as well as continues supporting the deployment of these vehicles in Canada. The correction also supports the federal government’s commitment to promoting advanced technology vehicles as a method of reducing GHG emissions as part of Canada’s plan to becoming carbon neutral by 2050.

Implications

Under CEPA, the Minister’s Interim Order would cease to have effect 14 days after it was made unless approved by the Governor in Council. This Governor in Council Order approves the Interim Order to correct the formula in the Regulations for up to a year from the date that it is made by the Minister. Under subsection 163(5) of CEPA, the Interim Order could cease to have effect earlier than one year if it is repealed or if the Regulations are amended or repealed to give effect to the Interim Order, whichever is earlier.

Correcting the formula used in the Regulations to calculate credits for advanced technology vehicles, as well as natural gas dual fuel vehicles and dedicated natural gas vehicles, ensures that companies receive the intended level of credit for each vehicle sold. This correction will increase the number of earned credits for companies whose sales substantially or entirely consist of advanced technology vehicles.

As in the U.S. EPA regulations, the Interim Order will be retroactive to the 2017 model year. Furthermore, the Interim Order will provide the option for companies to calculate credits from advanced technology vehicles using the corrected approach or the existing approach. The Interim Order does not affect any other provisions of the Regulations.

Consultation

Since the publication of the regulatory amendment by the U.S. EPA on April 23, 2020, the Department has received several letters from stakeholders (e.g. automobile manufacturers and their industry associations as well as non-governmental organizations) on the issue requesting that the same correction be made to the Canadian Regulations.

The Department is committed to consultations with all stakeholders, thoroughly considering any relevant issues raised, and communicating decisions in a timely manner throughout the regulatory amendment process.

Contact

Stéphane Couroux
Director
Transportation Division
Environment and Climate Change Canada
351 Saint-Joseph Boulevard, 13th Floor
Gatineau, Quebec
K1A 0H3
Telephone: 819‑420‑8020
Email: Stephane.Couroux@canada.ca

DEPARTMENT OF HEALTH

FOOD AND DRUGS ACT

Order Approving the Interim Order Respecting the Prevention and Alleviation of Shortages of Drugs in Relation to COVID-19

P.C. 2020-833 October 23, 2020

Her Excellency the Governor General in Council, on the recommendation of the Minister of Health, pursuant to paragraph 30.1(2)(a)footnote b of the Food and Drugs Actfootnote c, approves the Interim Order Respecting the Prevention and Alleviation of Shortages of Drugs in Relation to COVID-19, made by the Minister of Health on October 16, 2020.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

The Order approves the Interim Order Respecting the Prevention and Alleviation of Shortages of Drugs in Relation to COVID-19 (the Interim Order), made by the Minister of Health on October 16, 2020. The Interim Order puts in place new measures to help prevent or alleviate drug shortages and the risk of drug shortages, caused or exacerbated, directly or indirectly, by COVID-19.

Without the Order, the Interim Order would, in accordance with paragraph 30.1(2)(a) of the Food and Drugs Act, cease to have effect 14 days after it was made. As a result of the Order, the Interim Order will, in accordance with paragraphs 30.1(2)(b) to (d) of the Food and Drugs Act, 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.

Objective

The objective of the Order is to ensure the continued effect of the Interim Order, which addresses a significant risk to the health of Canadians as a result of drug shortages caused or exacerbated, directly or indirectly, by COVID-19.

Background

COVID-19 is the infectious respiratory disease caused by a strain of the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The outbreak of COVID-19 began in Wuhan, China, in December 2019. In more severe cases, COVID-19 infection can cause pneumonia, severe acute respiratory syndrome, kidney failure, and death.

The World Health Organization (WHO) declared a global pandemic related to COVID-19 on March 11, 2020. As of September 30, 2020, there are more than 33 785 178 cases worldwide and over 1 010 147 people have lost their lives. Since this date, the number of confirmed cases in Canada has exceeded 156 961 and over 9 291 Canadians have died.

The COVID-19 pandemic has created global supply challenges and caused an unprecedented demand for certain drugs, which has contributed to drug shortages in Canada. During the early months of the pandemic, there were 592 shortages reported in Canada compared to 441 during the same months in 2019. By September 2020, Canada experienced 38 Tier 3 (highest impact) shortages, compared to approximately 10 such shortages in all of 2019. Pharmaceutical manufacturing has had to adapt quickly to address rapid changes in demand, which has put additional pressure on the supply of drugs and raw materials to manufacture drugs. Canada is particularly vulnerable to drug shortages, due to its smaller market size and reliance on imports. The COVID-19 pandemic threatens the health of Canadians by exacerbating existing shortages and increasing the risk of new drug shortages.

On August 25, 2020, the Public Health Agency of Canada released the Federal/provincial/territorial public health response plan for ongoing management of COVID-19 to help guide decision-making in order to respond to future waves of the pandemic. As noted in the plan, the reasonable worst-case scenario for future waves would include a peak in fall or winter 2020 that is two to three times higher than the peak of the initial wave, creating a demand for resources that significantly exceeds system capacity. While the reasonable worst-case scenario is not predictive or even highly likely, such an impact would further burden the health care system and increase the risk of existing and new drug shortages. To manage the risks posed by the reasonable worst-case scenario, additional tools are required to safeguard Canada’s drug supply and ensure that Canadians have access to the medicines they need. Immediate action is required to better prepare Canada from the threat of shortages related to COVID-19 and protect Canadians from this significant risk to their health.

Drug shortages have a real impact on Canadians. Health care providers rely on access to needed drugs to provide proper and timely treatment. In some cases, the pandemic has further constrained the available supply of a drug, preventing patients from fully filling their prescriptions (e.g. the antidepressant phenelzine and propylthiouracil, used to manage hyperthyroidism). Drug shortages can also contribute to adverse patient outcomes, including delayed or cancelled surgeries, increased risk of negative patient outcomes because of the necessity of alternative treatments, discontinuation of treatment, and rationed drugs. Urgent action is required to put in place tools that will prevent drug shortages where possible and alleviate their impact on Canadians when they occur.

The Government of Canada has collaborated with industry, provinces and territories, health practitioners and other partners to address drug shortages throughout the COVID-19 pandemic. However, in preparation for a resurgence, the need for strong federal leadership to safeguard Canada’s drug supply and ensure that Canadians have access to the medicines they need continues. Reliable and timely information is required for Health Canada to act quickly and effectively to minimize the effects of these shortages on Canadians.

To date, industry has voluntarily provided this information and Health Canada has worked with companies to address shortages. Significant efforts have been made since early in the pandemic, through a whole-of-government approach, to respond to drug supply disruptions. The need for vigilance in maintaining the national drug supply continues and additional tools will better prepare Health Canada to respond to the imminent threat posed by a future resurgence.

On October 16, 2020, the Minister of Health made the Interim Order Respecting the Prevention and Alleviation of Shortages of Drugs in Relation to COVID-19 to introduce new tools to address drug shortages, or the risk of drug shortages, that may be caused or exacerbated, directly or indirectly, by COVID-19. The Interim Order allows the Minister of Health to require any person who sells a drug to provide information under that person’s control about a shortage or potential shortage of that drug related to COVID-19 under certain conditions. The Order also enables the Minister to impose or amend terms and conditions to authorizations to sell a drug for the purpose of preventing or alleviating a drug shortage or risk of a drug shortage related to COVID-19 under certain conditions. This Interim Order is in effect for 14 days, which does not provide sufficient time for Health Canada to effectively use these tools to help prevent or alleviate drug shortages related to the COVID-19 pandemic.

Implications

As a result of this Order, the Interim Order will, in accordance with paragraphs 30.1(2)(b) to (d) of the Food and Drugs Act, 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 timeframe will enable the objectives of the Interim Order to be met and provide the Minister of Health with new tools to help prevent and alleviate drug shortages related to COVID-19.

Authorizing the Minister to compel information related to drug shortages will facilitate timely access to needed information respecting a drug shortage during the COVID-19 pandemic, in cases where sellers would not voluntarily provide the information. This will enable Health Canada to assess and respond more quickly to an actual or anticipated shortage, which could limit or prevent harm to Canadians. In addition, an authority to apply terms and conditions on certain authorizations to sell a drug will help to alleviate an existing shortage or address the risk of that drug going into shortage by promoting a more agile and adaptable supply of that drug. Together, these tools enable Health Canada and stakeholders to better prevent and alleviate drug shortages during the COVID-19 pandemic and help to protect the health of Canadians.

Information request

The Interim Order allows the Minister to require any person who sells a drug to provide information about a shortage or potential shortage of that drug if the Minister has reasonable grounds to believe that

A person required to provide information must do so electronically in a format acceptable to the Minister, which will be specified in industry guidance that will be posted on Health Canada’s website. The information will also be required to be submitted within the time specified by the Minister. However, the Minister cannot require the information to be submitted with less than 24 hours’ notice, unless the Minister has reasonable grounds to believe, based on knowledge, experience, expert advice or other information from a reliable source, that there is a serious or imminent health risk.

The Minister can only request information that is in the control of the person and this power cannot be used to require a person to create new information in response to the Minister’s request. The decision to compel information through the Interim Order must be reasonable, factual, and flow logically from the signals available to the Minister. Signals may include complaints, media reports, website notifications of drug shortages, a quality issue requiring Health Canada to take action, the discontinuation of a product, or broader supply chain issues. Industry, provinces and territories, or stakeholders may also identify potential indications of shortage.

Requests for information by the Minister will be accompanied by an explanation of the reason for the request to allow for more transparent decision-making. The decision to request information will be based on evidence and clearly communicate the decision taken and the rationale so that the affected party understands how the result was reached. The process for providing information and more details about the types of information that may be requested will be provided in guidance.

Terms and conditions

The Interim Order also allows the Minister to add or amend terms and conditions to certain authorizations to sell a drug for the purpose of preventing or alleviating a shortage. The Minister may only add or amend terms and conditions to an authorization if the Minister has reasonable grounds to believe that

Through terms and conditions, market authorization holders would be required to take measures related to shortage mitigation and prevention in relation to the drug. The precise measures would be tailored to address the specific shortage of a drug or the specific risks of that drug going into shortage and Health Canada would work with market authorization holders to develop the appropriate measures to be applied. Terms and conditions that could be imposed include identifying alternative sources for raw materials and supplies, developing mitigation strategies to address issues, or reporting on inventory levels on a regular basis. Through these terms and conditions, authorization holders would be better able to anticipate, plan for, alleviate, and prevent shortages. More information about mitigation strategies will be provided in guidance.

The decision to impose or amend terms and conditions on an authorization for sale of a drug must be reasonable, factual, and flow logically from the information available to the Minister. Market authorization holders will be notified before a term or condition is applied, afforded an opportunity to respond, and provided with reasons if a term or condition is added or amended. Decisions will be based on evidence, and the rationale and the decision taken will be clearly communicated to allow for more transparent decision-making, so that the market authorization holder understands how the result was reached.

Administrative burden and cost to industry

Although the Interim Order does not impose direct costs on industry, it may create administrative burden and costs to industry related to collecting and analyzing information, reporting to Health Canada, and developing mitigation strategies for shortages.

Based on the costing survey conducted to support the Regulations Amending the Food and Drug Regulations (Shortages of Drugs and Discontinuation of Sale of Drugs), published in the Canada Gazette, Part II, in 2016, the Department estimates that the cost of labour to respond to an information request would be approximately $392 per request ($112 per hour for an estimated 3.5 hours). The Department estimates that the cost to industry associated with a decision to apply of terms and conditions related to information gathering, analysis, and reporting would be $4,200 ($112 per hour for an estimated 37.5 hours).

The provisions in the Interim Order would only be used by Health Canada in a targeted fashion to address specific challenges related to a drug shortage, or the risk of a drug shortage, related to COVID-19. Thus, the administrative burden and costs created by this Interim Order may only be realized by a small portion of the pharmaceutical industry in Canada and for a finite period of time until the shortage is resolved.

Consultations

The Department has received comments from industry associations on the proposed approach through written remarks and stakeholder engagement sessions on June 4, 2020, and September 3, 2020. These comments have been generally supportive and understanding of the need for information sharing. The industry associations also expressed a desire for continued engagement throughout the implementation process.

Industry raised some concerns regarding the feasibility and/or cost of implementing certain terms and conditions that may be imposed on an authorization to sell drugs. In particular, it was suggested to limit the scope of information requested, that a reasonable timeline be provided for the requests, and that criteria be established to identify the products to which terms and conditions will be applied. They also expressed a desire for regulatory decisions on terms and conditions to be made in collaboration with industry and publicly available.

The Interim Order has been designed to address stakeholder concerns by specifying that the Minister can only request information that is in the control of the person and that this power cannot be used to require a person to create new information. As well, a provision was added that specifies the Minister can only compel information if there are reasonable grounds to believe that the person would not provide the information without a legal obligation. In addition, a minimum timeline of 24 hours for information requests, unless there is a serious and imminent risk of injury to human health, has been included in the Interim Order.

Additional concerns are being addressed through industry guidance that has been posted on Health Canada’s website. The Department will make terms and conditions publicly available so that regulatory decisions are transparent and open. In addition, Health Canada will engage stakeholders during implementation and will hold compliance promotion sessions.

Due to the urgent nature of the Interim Order, broader stakeholder consultation was not possible.

Contact

Catherine Hudon
Director
Compliance Policy and Regulatory Affairs
Policy and Regulatory Strategies Directorate
Regulatory Operations and Enforcement Branch
Health Canada
Address Locator: 1907A
200 Eglantine Driveway
Jeanne Mance Building
7th Floor, Room 705A
Tunney’s Pasture
Ottawa, Ontario
K1A 0K9
Telephone: 343‑540‑8524
Email: hc.prsd-questionsdspr.sc@canada.ca

DEPARTMENT OF NATURAL RESOURCES

NATIONAL ENERGY BOARD ACT

Order — Certificate of Public Convenience and Necessity GC-129 to NOVA Gas Transmission Ltd. in respect of the construction and operation of the 2021 NGTL System Expansion Project

P.C. 2020-811 October 19, 2020

Whereas, on February 27, 2018, NOVA Gas Transmission Ltd. (“NGTL”) submitted a project description to the National Energy Board (“Board”) indicating its intention to apply, pursuant to Part III 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 2021 NGTL System Expansion Project (“Project”) in Alberta, which application was submitted to the Board on June 20, 2018;

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 July 5, 2018, 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 for and being granted intervenor status for the proceedings, while 10 Indigenous intervenors participated in sharing oral Indigenous knowledge;

Whereas, on July 3, 2018, Canada wrote to Indigenous groups potentially impacted by the Project confirming its general approach to 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 April 18, 2019;

Whereas, having determined that NGTL’s application was complete, the Board issued Hearing Order GH-003-2018 on December 4, 2018;

Whereas, pursuant to subsection 79(1) of the Species at Risk Act (”SARA”), the Minister of the Environment was notified, on December 18, 2018, of nine species listed under Schedule 1 to SARA and their critical habitat that are potentially affected by the Project;

Whereas, on January 24, 2019, the Board held a conference to obtain the views and perspectives of Indigenous intervenors on the design of the proceedings, with a view to enhance the meaningful participation of Indigenous peoples, and issued a final conference summary report on February 14, 2019;

Whereas, having considered the views of Indigenous intervenors set out in the final conference summary report, the Board modified Hearing Order GH-003-2018 and issued Procedural Update No. 1 on February 21, 2019;

Whereas 21 Indigenous groups were awarded significant funding by the Board to support participation in the hearing;

Whereas, during the hearing, Canada conducted 73 meetings to consult with Indigenous groups;

Whereas, on August 28, 2019, the Canadian Energy Regulator Act (“CER 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 the 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, after a temporary adjournment in the hearing as a result of the coming into force of the CER Act, the Commission recommenced the hearing on September 18, 2019;

Whereas, on February 19, 2020, having completed the hearing, reviewed NGTL’s application and conducted an environmental assessment of the Project, and having considered the impacts on species at risk and their critical habitat, the Commission submitted its report on the Project entitled Canada Energy Regulator Report — NOVA Gas Transmission Ltd. — GH-003-2018 (the “Commission’s Report”) to the Minister of Natural Resources, pursuant to section 29 of the 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 decisions and reasons of the Commission, the conditions which would apply to a certificate of public convenience and necessity if the Project were approved, the conditions that would apply to a section 58 order of the NEB Act if the Project were approved and six additional recommendations on matters that the Commission determined were outside of its mandate;

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 support for economic development through the creation of jobs across Canada, the development of capacity of local and Indigenous individuals, communities and businesses, direct spending on pipeline materials in Canada and the considerable revenues to various levels of government which are spent to support programs and services in both Indigenous and non-Indigenous communities;

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 increased disturbance in the woodland caribou (Boreal population) critical habitat and further modification of the landscape in the region, potentially affecting the abilities of Indigenous peoples to use and access Crown land;

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 Governor 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 34 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 the CEAA, 2012;

Whereas the Commission also considered the requirements of sections 77 and 79 of SARA with respect to nine wildlife species listed under Schedule 1 and their critical habitat, including the woodland caribou (Boreal population), and proposed several conditions to mitigate, avoid or lessen adverse impacts of the Project on the species at risk and their critical habitat, including a revised caribou habitat restoration and offset measures plan;

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 public and 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 by Order in Council P.C. 2020-341 of May 18, 2020, the Governor in Council extended the time limit to render its decision to October 19, 2020 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 48 Indigenous groups through more than 150 meetings and provided funding to participate in Crown consultations;

Whereas, through Canada’s consultation report entitled 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 to Indigenous interests, including established and asserted Aboriginal or treaty rights recognized in section 35 of the Constitution Act, 1982, raised by Indigenous groups during consultations and engagement activities, 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 to Aboriginal or treaty rights recognized in section 35 of the Constitution Act, 1982;

Whereas, in response to Project-related concerns and potential impacts to 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 consultations, and consistent with the Government’s commitment to reconciliation with Indigenous peoples, the Governor in Council is of the opinion that the addition to and amendment of the conditions set out in Appendix I of the Commission’s Report, in the manner set out in the annexed schedule, is appropriate;

Whereas, to respond to concerns Indigenous groups have raised during Crown consultations about cumulative effects of development in the terrestrial and freshwater environment, including the Project’s further contribution to these effects, Canada will extend participation in the Terrestrial Cumulative Effects Initiative to those Indigenous groups to whom Canada owed a duty to consult and who were not otherwise eligible to participate in it at the time of its creation;

Whereas the Governor 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 consultation process undertaken offered meaningful two-way dialogue with all 44 Indigenous groups consulted on the Project, as well as four Indigenous groups engaged in the spirit of reconciliation, has provided responses and, where appropriate, reasonable accommodations to address potential impacts on section 35 Aboriginal or treaty rights, including by adding to or amending the conditions set out in Appendix I of the Commission’s Report, and upholds the honour of the Crown;

Whereas the Governor 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 amended or added to as set out in the annexed schedule to address potential impacts to 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;

Whereas the Governor in Council, having reviewed the six recommendations of the Commission with respect to matters outside of the Commission’s mandate, commits to working towards responding to those recommendations that fall within federal jurisdiction;

And whereas the Governor in Council considers that the Project would increase access to diverse 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;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Natural Resources,

Schedule I to the Order in Council

Amendments and Addition to the Canada Energy Regulator Conditions

Note: Amendments and addition to the Canada Energy Regulator conditions are italicized and underlined.

Condition 6: Revised Caribou Habitat Restoration and Offset Measures Plan (CHR&OMP)

Condition 12: Construction Monitoring Plan for Indigenous Peoples

Condition 14: Report on Engagement with Indigenous Peoples

Condition 27: Post-construction Monitoring Plan for Indigenous Peoples

Condition 31: Caribou Habitat Restoration Implementation Report and Status Update

NEW CONDITION:

Condition 35: Indigenous Working Group for the Little Smoky Caribou Range

For the purpose of collaborative finalization of the CHR&OMP and related detailed planning concerning restoration, access management, offsets, and monitoring measures, and for the development of other filings relating to caribou required under Conditions 6, 31, 32, 33 and 34, including ensuring the collection and incorporation of caribou-specific Indigenous knowledge, NGTL must seek to establish an Indigenous Working Group (IWG) for the Little Smoky Caribou Range with any interested Indigenous communities that have been identified as being potentially affected by the Project (‘The Indigenous Communities’).

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal and objectives

This Order in Council is required pursuant to section 54 of the National Energy Board Act (NEB Act) and section 31 of the Canadian Environmental Assessment Act, 2012 (CEAA, 2012) to direct the Canada Energy Regulator (CER) to issue Certificate of Public Convenience and Necessity (Certificate) GC-129 to NOVA Gas Transmission Limited (NGTL) for the 2021 NGTL System Expansion Project (the Project).

This proposal would enable the expansion of the existing NGTL natural gas pipeline system that spans much of Alberta and parts of British Columbia in order to alleviate capacity constraints in the NGTL network and help producers get their product to market. This would help to expand Canada’s natural gas industry, while taking important environmental, health, and Indigenous considerations into account.

Background

On June 20, 2018, NGTL applied to the National Energy Board (NEB or the Board) under sections 52 and 58 of the NEB Act, requesting that a Certificate approving the Project and an exemption Order be issued.

During the review process, 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 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 with 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 was continued under the CEAA, 2012.

The Project is a “designated project” pursuant to paragraph 2(b) of the CEAA, 2012, for which the CER is the responsible authority (RA). The CER is accordingly required to conduct an environmental assessment (EA) for the Project and must ensure that Canadians have the opportunity to participate in the EA, and that the final EA is included in the Report.

The Commission of the CER is responsible for adjudicating the review of an application for a Certificate for the construction and operation of a pipeline. The Commission is required to issue a Recommendation Report (the Report) to the Minister of Natural Resources (the Minister), who is authorized to make a recommendation to the Governor in Council (GiC) as to whether the Commission should be authorized to issue a Certificate for the pipeline Project.

Project background

The $2.3 billion Project consists of the construction of approximately 344 km of new natural gas pipeline in eight segments, three compressor station units, and related components and facilities that would extend from Grande Prairie to north of Calgary, Alberta. If approved, the Project would “loop” (add new pipeline parallel or adjacent to existing pipeline) parts of the existing NGTL pipeline system. Details of the Project are available in the Commission’s Report.

Of the 344 km of proposed pipeline, NGTL has stated that approximately 85% (293 km) would run parallel to existing linear disturbances. Of this portion, just less than half would be located within existing NGTL land rights, and the rest would be located along existing linear disturbances. Approximately 15% (51 km) of the proposed pipeline would be new right-of-way (RoW). Overall, approximately 80% of the pipeline would cross provincial Crown lands and the remainder would cross private freehold lands.

The Project would relieve bottlenecks and increase capacity to connect natural gas to local markets in Alberta, provincial markets east of Alberta, and to export markets in the United States (US).

Implications

Legal framework and interim principles

The Project application was assessed by the Commission in accordance with the NEB Act, CEAA, 2012, and the Species at Risk Act (SARA).

Canada applied the Interim Principles for major project reviews announced by the Government of Canada on January 27, 2016.

These Interim Principles established a framework for major project reviews while Canada reviewed its environmental assessment process, and 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.

On August 22, 2019, the NEB temporarily adjourned the hearing to allow the Lead Commissioner of the CER to set up a new panel to continue the process. On September 18, 2019, the Lead Commissioner advised all participants of the new panel and on October 1, 2019, of the new schedule.

CER recommendation report to the GiC

On February 19, 2020, the Commission delivered its Report to the Minister. In reviewing the Project and arriving at its recommendation to the GiC, the Commission considered economic, environmental, species at risk, safety and Indigenous concerns (see section “Consultations” below), among other things. Notable topics include:

Economic impacts

The Commission noted that the Project could bring significant economic benefits to Canada through capital expenditures during construction, estimated by NGTL at $2.3 billion, and additional operating expenditures. The Project would provide job opportunities to Canadians and Indigenous peoples, mostly in Alberta. It would benefit Canada’s economy including access to diverse markets for Canadian natural gas; maintaining access to natural gas supplies for diverse Canadian consumers; development of capacity of local and Indigenous individuals, communities, and businesses; direct spending on pipeline materials in Canada; and considerable revenues to various levels of government, which is spent to support programs and services in both Indigenous and non-Indigenous communities.

NGTL has estimated total average size of the temporary construction workforce to be about 1 890 workers with a peak of 2 920 workers. NGTL has committed to prioritizing local Indigenous service providers. The company indicated that it would also apply TC Energy’s (NGTL’s parent company) established Aboriginal Contracting and Employment Program to the Project, meaning that, to the extent possible, NGTL will make every effort to hire and contract with Indigenous individuals or businesses according to NGTL’s Project Application. It is expected that the economic benefits of the Project will also result in significant community investment, capacity funding and contracting and procurement opportunities, including training, for local and Indigenous communities and businesses. NGTL has stated that it is committed to using qualified local and Indigenous employees, contractors, and service providers whenever feasible.

The Commission found the assumptions used by NGTL in its estimates to be reasonable, including the supply and demand forecasts submitted in the hearing. The Project is driven primarily by Western Canada Sedimentary Basin (WCSB) producers seeking increased access to markets and the ability to compete for downstream market share in Canadian and export markets in the United States. This could provide producers with stability and higher netbacks. The commercial need for the Project was also manifested by customers signing long-term contracts for firm receipt and delivery transportation services that exceed capacity of the NGTL System, beginning in 2021.

The Commission assessed the Project’s potential impacts on the environmental components listed below. The methodology consisted of determining the plausible interactions between the Project and the environmental components during the construction, operation and abandonment (i.e. the life cycle) of the Project.

Requirements under the Species at Risk Act

The Commission must comply with section 77 and section 79 of SARA and specifically must be of the opinion that all reasonable alternatives that would reduce the impact of an activity on a species’ critical habitat have been considered and the best solution adopted (paragraph 77(2)(a)) and that all feasible measures will be taken to minimize the impact of the activity on the species’ critical habitat (paragraph 77(2)(b)). It also must ensure that those measures taken to avoid or lessen any adverse effects of the Project on the listed wildlife species and its critical habitat are consistent with any applicable recovery strategy and action plans and monitor them (subsection 79(2)).

In compliance with requirements set out under sections 77 and 79 of SARA, the Commission notified the Minister of Environment and Climate Change on December 27, 2018, of nine species at risk listed on Schedule 1 of SARA. The species identified as potentially impacted by the Project are Woodland Caribou — Little Smoky Range; Grizzly Bear; Northern Myotis and Little Brown Myotis; Olive-sided Flycatcher; Yellow Rail; Western Toad; Common Nighthawk; and Rusty Blackbird.

In accordance with its responsibilities under the CEAA, 2012, the Commission conducted an environmental assessment and identified all potentially impacted environmental components.

Based on its findings and evidence from participants, the Commission imposed 10 conditions aimed at protecting species at risk (Conditions 3, 5, 6, 7, 23, 30, 31, 32, 33 and 34) of which six relate to caribou – one related to caribou habitat restoration and five related to monitoring, implementation, and status reports.

Woodland Caribou (Little Smoky range)

Caribou is a species of importance for Indigenous groups’ cultural practices and activities. The Project, if approved, would cross 43.9 km of the range for the Little Smoky Caribou herd. Boreal Woodland Caribou are listed as threatened on Schedule 1 of the Species at Risk Act (SARA), and as endangered under the Alberta Wildlife Act. Federal and provincial estimates indicate that the Little Smoky Caribou Range is already highly disturbed (95-99%) due to human activity such as roads.

NGTL committed to implementing best practice mitigating measures for caribou and caribou habitat protection including, among other things, (i) avoiding new construction access and temporary construction facilities where feasible in undisturbed caribou ranges; (ii) avoid working, where feasible, within the restricted time period set by Alberta Environment and Parks; (iii) keeping all potential construction camps on the Boundary Lake Section outside of caribou range; and (iv) minimizing the number of hydrostatic testing locations to the extent possible in caribou habitat. In addition, NGTL noted that it would reduce and offset Project effects on caribou through the Caribou Habitat Restoration and Offset Measures Plan (CHR&OMP), which would ensure that the Project does not result in any net loss of caribou habitat.

The Commission concluded that with the successful implementation of NGTL’s mitigation policies and measures, and the conditions imposed, the potential residual effects associated with the Project would be mitigated.

Canada and Alberta are currently negotiating a conservation agreement under section 11 of SARA. The agreement will provide an overarching strategy for caribou recovery in Alberta, including the Little Smoky range. It also provides for the formation of Indigenous and multi-stakeholder sub-regional task forces to make recommendations on habitat restoration. Publication of the final agreement is pending conclusion of negotiations.

Other wildlife species

The Project would run through an area that is known for being suitable breeding habitat for a number of species of concern. Several studies conducted on NGTL’s behalf, including a winter tracking survey, wildlife camera survey, amphibian survey, songbird survey and others, were conducted in the Project areas, identifying 31 bird species, 6 mammal species and 3 reptile species that could be impacted by the Project. The Commission was of the view that any potential Project impacts on these species are likely to be minimal and can be effectively addressed through NGTL’s proposed mitigation, best practices and three conditions imposed by the Commission to enhance the effectiveness of NGTL’s mitigation measures (Conditions 3, 5, and 7).

Watercourse crossings

NGTL’s Application indicates that the Project would result in 130 watercourse crossings and 50 crossed drainages. The Commission is of the view that with NGTL’s proposed mitigation measures and the Commission’s two relevant imposed conditions (Conditions 20 and 22), the adverse effects of the Project on watercourse crossings are not likely to be significant.

Safety of the pipeline and facilities

The design and construction of the pipeline are governed by the CSA-Z662-19 standard. The Commission assessed and tested evidence for project design and potential safety risks, considering all of the hazards and potential hazards that are associated with the pipeline systems, and NGTL is required to demonstrate that the appropriate safety, pipeline integrity and risk management plans and measures are in place. The Commission imposed a condition (Condition 2) requiring NGTL to comply with the specifications, standards, commitments made and other information included in or referred to in its Project Application or in its related submissions. NGTL has committed to maintain access to at least $200 million in financial resources to respond to a potential incident, consistent with the Pipeline Financial Requirements Regulations, and set aside funds for abandonment at the end of the Project’s life cycle.

Conclusions of the Commission

The Commission recommended that the GiC approve the Project and that a Certificate be issued for the construction and operation of the Project, pursuant to section 52 of the NEB Act, subject to 34 binding conditions covering matters including safety, environmental protection and consultation with Indigenous peoples. The Commission determined that the Project is in the public interest and that after mitigation, it is not likely to cause significant adverse environmental effects or significant impacts to Indigenous interests (pursuant to section 29 of CEAA, 2012).

In addition to the approval of the pipeline and related facilities sought under section 52, NGTL also applied to the NEB for an Order under section 58 exempting certain activities and facilities associated with the Project from certain provisions of the NEB Act. The Commission also reviewed the Project with respect to these section 58 activities and facilities (such as compression stations), and imposed 24 conditions set out in Annex III of the Commission’s Report. Under the NEB Act, authorizations for those activities do not require GiC approval.

In the Report, the Commission further issued six non-binding recommendations for consideration and action in relation to issues that are beyond the CER’s mandate.

Consultations

Canada is committed to advancing reconciliation and renewing its relationship with Indigenous peoples to one based on a recognition of rights, respect, cooperation, and partnership. This commitment places an emphasis on ensuring that the Crown fulfills its duty to consult and, where appropriate, accommodates Indigenous peoples in a manner that is reasonable and meaningful. This includes fostering two-way dialogue in a manner that upholds the honour of the Crown.

The NEB and later CER conducted a public hearing process for the review of the Project, including Indigenous Intervenors and stakeholders from industry, government, and the public.

CER hearing process

On December 4, 2018, the NEB issued Hearing Order GH-003-2018, followed by procedural updates setting out the process, and providing a list of issues to be considered.

The NEB received and considered a total of 57 applications to participate (ATPs) in the proceedings. It granted standing (or right) to participate to 56 applicants of which 41 participated as Intervenors, including Indigenous parties, commercial entities, and federal and provincial government departments. The remaining 15 applicants participated in the hearing as commenters. The Commission conducted its hearing for the Project primarily through a written process, which included rounds of filing evidence, multiple rounds of information requests, and the submission of final argument concluding with NGTL’s submission of its reply argument.

The Board also provided the opportunity to all Indigenous Intervenors to provide oral traditional evidence to the Board. On January 24, 2019, the NEB convened a one-day Conference to discuss meaningful participation of Indigenous Intervenors in the proceedings. Subsequently, after reviewing the Final Conference Summary Report on the Conference and considering issues raised in it by the registered Parties, the NEB released its Procedural Update No. 1, which further modified the hearing process in terms of the timetable of hearing steps to accommodate Indigenous Intervenors. Nineteen registered parties attended the Conference.

Stakeholders’ views and issues raised

Commercial parties

The Project generated little debate among commercial parties regarding either its need or the NGTL’s proposed tolling methodology. The Canadian Association of Petroleum Producers (CAPP), a major industry association, expressed strong support for the Project, and agreed with NGTL’s forecasts of natural gas supply growth in the region and transportation capacity shortages, which it views as a key commercial consideration.

Landowners

NGTL identified 78 landowners and 10 occupants that are potentially affected by the Project. NGTL also determined that land users such as trappers, guide/outfitters, snowmobile clubs and grazing tenure holders might also be affected by the Project. NGTL identified 29 Registered Trapping Areas, 63 guide/outfitters and 7 Grazing Lease Holders. In addition, NGTL identified unregistered occupants based on information gathered from landowners. The Commission accepted the Project routing and found the NGTL’s process for land rights and acquisition acceptable.

Federal and provincial governments

Environment and Climate Change Canada

Environment and Climate Change Canada (ECCC) participated in the Project proceedings as an Intervenor and provided input to the Commission on a number of issues, including (i) the protection of the Boreal Woodland Caribou and its critical habitat, the Little Smoky Caribou Range, (ii) air quality and greenhouse gas (GHG) emissions.

On caribou, ECCC underscored the importance of avoiding additional loss in the Boreal Woodland Caribou critical habitat and of mitigation measures aimed at restoring linear features within the Little Smoky Caribou Range to minimize the attraction of alternate prey species (e.g. moose, elk and deer) and predators that could use the linear feature as a travel corridor.

On air quality and direct GHG emissions during construction and operation of the Project, ECCC made several recommendations to help reduce emissions, including providing employee training or minimizing idling of off-road equipment, avoiding tampering with emission control systems, using low emission vehicles, as well as the use of emission control technologies and its maintenance.

The Commission imposed Condition 26 for the section 52 pipeline and related facilities and Condition 21 for the section 58 facilities and activities, requiring NGTL to file a quantitative assessment of the actual GHG emissions directly related to the construction of the Project.

Health Canada

Health Canada submitted a Letter of Comment and discussed potential Project impacts on country foods and shallow drinking water wells.

Natural Resources Canada

Natural Resources Canada (NRCan) participated in the hearing for the Project as an Intervenor, filing written evidence, participating in cross-examinations on its evidence, and commenting on the Commission’s initial draft conditions. Many of NRCan’s submissions were reflected in the conditions outlined in the Commission’s Report.

Alberta Department of Energy

The Alberta Department of Energy (DoE) participated in the hearing for the Project as an Intervenor and noted its support for the timely approval of the Project, recognizing that the Project would provide critically important access to demand markets, which it views as urgently required to prevent a collapse of the Canadian natural gas industry.

Indigenous involvement in the CER hearing

In June 2018, the NEB wrote to Indigenous groups potentially affected by the Project advising them about the Project application and on July 5, 2018, it sent a Notice of Hearing inviting interested parties to file an Application to Participate (ATP). Twenty-one Indigenous groups participated as Intervenors and two as commenters. The Board received and reviewed 21 applications for funding from Indigenous groups, and allocated $1,588,830 in funding to assist them in building capacity to participate in the Project review.

In January 2019, the Commission held a conference in Calgary to better understand meaningful consultation for Indigenous Intervenors and its implications for managing the review process. Nineteen Indigenous Intervenors participated in the conference, which led the Commission to make the following changes to the hearing schedule: (1) moving the date for sharing Indigenous knowledge from February to April 2019; (2) postponing filing Intervenors’ evidence from March to April 2019; (3) breaking down the cross-examination session into two parts; and (4) allowing final arguments to be provided both orally and/or in writing.

Chapter 7 of the Commission’s Report describes their participation and concerns expressed regarding the Project, including (i) NGTL’s Indigenous engagement; (ii) involvement of Indigenous peoples in the Project implementation during and after construction; (iii) Project benefits to Indigenous peoples; and (iv) potential impacts of the Project on Indigenous peoples, including impacts on section 35 rights, heritage resources, social and cultural well-being, human health, traditional land and resource, environmental and cumulative effects.

Indigenous working group for the Little Smoky Caribou Range

Five Indigenous Intervenors recommended that an Indigenous Working Group (IWG) be established for the Project to oversee and actively participate in all stages of the CHR&OMP and subsequent Caribou Habitat and Offset Implementation Report and Monitoring Program (CHOIRMP) planning and decision-making in collaboration with NGTL, Alberta Environment and Parks, and ECCC. Although the Commission concluded in a split decision that an IWG condition is not necessary for the CHR&OMP or CHOIRMP, the minority view was that an additional condition related to collaboration with Indigenous peoples to establish an IWG would be warranted.

Commission determination related to Indigenous consultations

After an extensive review of its authority in regards to Crown consultation in light of existing legal frameworks and recent Court decisions, the Commission stated that NGTL designed and implemented appropriate and effective engagement activities for the Project, and that the Commission process was appropriate for these circumstances and enhanced the information flow to potentially impacted Indigenous communities and provided greater opportunities for meaningful participation of Indigenous peoples. The Commission was of the view that there was adequate consultation and accommodation for the purpose of the Commission’s recommendation on the Project. The Commission was also of the view that any potential Project impacts on the rights and interests of affected Indigenous peoples, after mitigation, are not likely to be significant and can be effectively addressed. The Commission concluded that approval of the Project would be consistent with section 35 of the Constitution Act, 1982 and the honour of the Crown.

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 a decision on the Project.

On July 3, 2018, Canada wrote to 42 potentially impacted Indigenous communities to inform them about its approach to consultation for the Project. Canada noted that it would rely, to the extent possible, on the Commission’s review process to discharge its section 35 duty to consult.

Canada sought to work with potentially impacted Indigenous groups to better understand how Aboriginal and Treaty rights, whether asserted or established, could potentially be impacted by the proposed Project. 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 Indigenous interests not otherwise addressed by Project conditions and proponent 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

Canada consulted and engaged with 48 Indigenous groups, of whom 44 are owed a legal duty to consult and 4 others who were engaged in the spirit of reconciliation.

Canada began to conduct consultation meetings with potentially impacted Indigenous groups in May 2019, nine months prior to the release of the Commission’s Report, in order to provide additional time for groups to express their views on the Project.

On February 19, 2020, the Commission sent its Report to the Minister of Natural Resources. This places a limit on the time available to complete Crown consultation, as the GiC has three months to make a final decision on the Project once the Commission issues its Report.

In response to concerns raised through past projects about the length and complexity of the Commission’s Report, Canada organized two information sessions for Indigenous groups after its release. The two information sessions were held on March 10 and 11, 2020, in Edmonton and Calgary, respectively, and were attended by representatives of the CER, the federal Department of Natural Resources (NRCan), NGTL, the province of Alberta (at the Edmonton session only), and 76 Indigenous people representing 38 groups. At these sessions, Indigenous peoples were provided an opportunity to learn more about the Report from the CER and to ask questions. Indigenous groups could also obtain information about potential economic opportunities from NGTL – both in the sessions and afterwards in individual meetings (as requested).

On March 16, 2020, Canada wrote to Indigenous groups to acknowledge the ongoing global pandemic, and confirm that it would be adjusting its consultation approach in light of COVID-19, to suspend in-person meetings based on public health recommendations, but remained flexible and available to meet through teleconference or videoconference.

On May 18, 2020, the GiC by Order in Council P.C. 2020-341, extended the statutory time limit for its decision until October 19, 2020, to provide more time for consultations in the context of the COVID-19 pandemic and to ensure that consultations with Indigenous groups are meaningful and are carried out in a manner that upholds the honour of the Crown.

In total, Canada held a total of 154 meetings for the Project, with approximately half of them held after the release of the Commission’s Report. At the end of consultations, four Indigenous groups did not formally agree that the duty to consult has been discharged or to conclude consultations. Canada ultimately engaged with 48 Indigenous groups, and NRCan awarded approximately $1M in funding to support Indigenous groups’ participation.

The issues of substantive concerns raised during Crown consultations by Indigenous groups are the following:

In addition to the opportunities to make their views known to NGTL, the Commission and within the formal Crown consultation process, Indigenous groups could write to ministers, by August 21, 2020, at the latest, to outline any outstanding Project-related concerns, or share their views in respect of the Project. Any such submissions are provided to the GiC together with Canada’s Crown Consultation and Accommodation Report (CCAR), prepared to inform the GiC decision with respect to the Project. The CCAR outlines the Project-related Crown consultations activities, Indigenous issues and concerns, outstanding concerns about the Project impacts, and provides recommendations for GiC consideration. Canada extended the deadline for several Indigenous groups who requested additional time. Canada also received seven independent submissions.

Accommodation measures

As a result of consultations, and in response to the issues noted above, the GiC is including the following accommodations as part of its decision:

Policy-based accommodation measure – Terrestrial Cumulative Effects Initiative (TCEI)

Expanding the Terrestrial Cumulative Effects Initiative (TCEI) to 16 Indigenous groups that were not eligible for funding under the Trans Mountain Pipeline Expansion (TMX) project.

Canada acknowledges that the Project, if approved, is being developed in an area of considerable industrial activity. Therefore, conditions on specific projects (such as those for NGTL 2021) cannot fully address the cumulative environmental effects and cumulative impacts on Indigenous interests. In light of the concerns raised in this area and the historical impacts of development in the Project area, Canada will expand the TCEI as a policy-based accommodation to eligible Indigenous groups.

TCEI is a broad program intended to respond to concerns Indigenous groups have raised about the cumulative effects of development in the terrestrial and freshwater environment. It is a collaborative initiative to build and strengthen Indigenous capacity and work together to better understand the cumulative effects of natural resource development. The information generated through the TCEI could inform future impact assessments or regional assessment. A full discussion of TCEI as a policy-based accommodation measure is set out in Section 6.1 of the CCAR.

Amendments and addition to project certificate conditions

Beyond TCEI, and in further response to what Canada heard during consultations on the Project, Canada will impose one (1) new condition and amend five (5) of the conditions included in Annex I of the Commission’s Report to accommodate the concerns of Indigenous groups related to their section 35 Aboriginal and Treaty rights. Before being finalized, these were discussed with Indigenous groups at a virtual meeting held on September 23, 2020.

These changes address concerns relating to caribou and caribou habitat and to Indigenous engagement and participation. Several Indigenous groups noted the importance of caribou to their communities, and raised concerns in relation to the potential Project impacts on the critical habitat of the Little Smoky Caribou Range. Specifically, Indigenous groups noted concerns with NGTL’s CHR&OMP. Many Indigenous groups expressed concern that NGTL’s ratio for caribou habitat offset and restoration will fail to adequately compensate for the interim habitat loss, lead to greater population declines, and delay or prevent their ability to exercise section 35 rights. Several Indigenous groups supported a higher offset ratio. Several Indigenous groups also supported a greater oversight and participation role in planning and decision-making regarding caribou and caribou habitat. Canada sees value in collaboratively working towards co-developed approaches for decision-making, ongoing engagement, including monitoring, and dispute resolution.

On Indigenous participation, several Indigenous groups noted the importance of ensuring that Indigenous knowledge, perspectives, and concerns continue to be considered over the lifecycle of the Project. Indigenous groups specifically raised concerns about the need for on-site monitoring and environmental inspections by Indigenous peoples throughout the Project lifecycle, and additional capacity to review filings. Canada acknowledges that Indigenous engagement is at the heart of a robust lifecycle monitoring plan and recognizes the importance of ensuring Indigenous interests continue to be considered, and that Indigenous rights continue to be respected.

The following are the proposed amendments to conditions and the new condition:

Further details on the Crown consultations process and Indigenous groups concerns can be found in the publicly available CCAR.

The GiC 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 amended conditions and new condition, the TCEI policy-based accommodation measure, and existing government programs and policies are capable of addressing the potential impacts to Indigenous interests.

Additional Commission recommendations to the GiC

During the hearing, evidence was submitted which the Commission determined was outside its mandate but for which it set out six non-binding Recommendations. The following are the recommendations and the Government of Canada response. Canada will continue in its efforts to work with the Government of Alberta to consider and respond to the CER recommendations and underlying concerns identified by Indigenous peoples, as reasonable and appropriate:

Conclusion

In accordance with the Interim Principles for Major Project Reviews, an assessment of the upstream GHG emissions associated with Project is required to inform the GiC’s decision on the Project. NGTL completed an upstream GHG emissions assessment using the methodology recommended by ECCC and published in the Canada Gazette on March 19, 2016. ECCC ensured that the upstream GHG emissions assessment was comprehensive and consistent with the above-noted methodology. Canada provided an opportunity for public comment on this assessment. NGTL estimated that the annual upstream GHG emissions associated with the Project in operation would vary from 1.43 to 1.93 megatonnes (Mt) CO2 equivalent.

The GiC 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 section 35 Crown consultation and accommodation of Indigenous groups.

The GiC accepts the Commission’s view that the Project is required by the present and future public convenience and necessity and 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 GiC, 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 including through Canada’s additional accommodations.

The GiC 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.

The GiC, having reviewed the Recommendations of the Commission in its Report, undertakes to working towards responding to the Recommendations that fall within federal jurisdiction.

In reaching its public interest determination on whether to approve the Project, the GiC 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 mitigate, avoid or lessen and monitor the effects of the Project on species at risk including the Woodland caribou (boreal population) and its critical habitat, the assessment of upstream GHG emissions and comments on that assessment, the CCAR, the independent submissions of Indigenous groups, the Commission’s recommendations on matters outside its mandate and Canada’s response to those recommendations, and Canada’s accommodation measures in response to Indigenous concerns including the amendments and addition to the Commission’s recommended conditions.

In considering this information, the Governor General in Council, on the recommendation of the Minister of Natural Resources,

Contact

Chris Evans
Senior Director
Pipelines, Gas and LNG Division
Petroleum Resources Branch
Natural Resources Canada
Telephone: 343‑292‑6521