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Terms of Reference for the Evaluation of the Substituted Brunswick Pipeline Project Environmental Assessment Process

Background

Where the Minister of the Environment (the Minister) is of the opinion that a process for assessing the environmental effects of projects under an Act of Parliament other than the Canadian Environmental Assessment Act (the Act) that is followed by a federal authority (for example that of the National Energy Board or a body established under a land claims agreement) would be an appropriate substitute, the Minister may approve that process as a substitute for an environmental assessment by a review panel under the Act 1.

Pursuant to section 44 of the Act, the Minister cannot approve a substitution unless the Minister is satisfied that: the substituted process would include consideration of the factors that must be considered pursuant to section 16 of the Act; the public will be given an opportunity to participate in the assessment; a report will be submitted to the Minister, and published, at the end of the assessment; and, any other criteria that have been established pursuant to paragraph 58(1)(g) are met.

Emera Brunswick Pilot Process

In January 2006, Maritimes and Northeast Pipeline Management Ltd. submitted a project proposal to the Canadian Environmental Assessment Agency (the Agency) and the National Energy Board (NEB) for the proposed construction and operation of a 145 kilometre pipeline between the Canaport liquefied natural gas facility at Mispec Point in Saint John, New Brunswick to the international border near Saint Stephen, New Brunswick (the Project). In May 2006, Maritimes and Northeast Pipeline Management notified the NEB that Emera Brunswick Pipeline Company had taken over ownership of the Project.

The NEB, Fisheries and Oceans Canada and Transport Canada are responsible authorities (RAs) under the Act for the environmental assessment. Environment Canada and Natural Resources Canada had identified themselves as expert federal authorities.

In March 2006, the NEB, in consultation with the other RAs, requested that the Minister of the Environment refer the assessment of the Project to a review panel pursuant to section 25 of the Act. The NEB further requested that the review panel process be conducted by the NEB under section 43 - the substitution provision of the Act.

In May 2006, the Minister of the Environment wrote to the Chairman of the NEB approving the request for substitution, subject to a number of conditions (copies of the relevant correspondence are appended to these Terms of Reference).

The NEB held public hearings on the Project from November 6 to November 20, 2006 and the NEB Review Panel issued its Report on April 11, 2007. The federal government's response to the NEB Review Panel's Report was approved by the Governor in Council in May, 2007. The RAs then decided that they may exercise their powers as required for the Project to proceed. The NEB issued a Certificate of Public Convenience and Necessity on June 11, 2007.

Evaluation

The substitution, in relation to the Project, of the NEB review process for an environmental assessment by a review panel under the Act was the first use of the Act's substitution provisions. The substitution was undertaken on a pilot basis. Now that it has concluded, it will be evaluated in order to inform ongoing consideration of policy issues associated with substitution.

The evaluation will focus on the identification of facts associated with the substitution process, and not on the outcomes of the NEB review process itself.

Objective

The objective of this evaluation is to examine the substitution that took place in relation to the Project in a fact-based manner. The results of this examination will contribute to ongoing policy considerations with regard to the application of substitution provisions by the Minister of the Environment. To this end the evaluation will examine:

  1. Whether, and if so, howthe conditions for substitution were met?
  2. What were the principal expectations in respect of the substitution process? Were these expectations realized? if so, what key factors contributed to this success? if not, what key factors contributed to the situation?
  3. What additional process considerations can be identified based on the experiences of participants in the substituted process?

To conclude on the above matters, the evaluation will examine the following:

Whether, and if so, How the Conditions for Substitution Were Met?

  • Did the substituted NEB Review Panel examine the matters outlined in the Environmental Assessment Scoping Document? (See attachments)
  • Was the Environmental Assessment Scoping Document made publicly available?
  • Did the substituted process provide informal opportunities for the public to convey their views to the NEB Review Panel, including written and oral presentations?
  • Did the environmental assessment report to the Minister of the Environment provide information on the NEB's rationale, findings, conclusions and recommendations in relation to the Project?
  • Was intervenor status granted to applicants who entered into a contribution agreement with the Agency under the Participant Funding Program (PFP)?
  • Did the NEB provide a report to the Minister of the Environment on the successful PFP applicants' participation in the NEB hearing process?

What Were the Principle Expectations in Respect of the Substitution Process, Were these Expectations Realized and if so, Key Factors That Contributed to this Success; If Not, Key Factors Contributing to the Situation?

  • What were the principal expectations of the federal government for Substitution? Were these realized?
  • Beyond the principal expectations, were other procedural considerations realized through the substituted process?
  • To what extent were process efficiencies realized with regard to the administration of the Substitution?

What Additional Process Considerations Can be Identified Based on the Experiences of Participants in the Substitution?

  • Did the substituted process include any new procedures, for example the coordination of project registries, that are not typical of a standard NEB process?
  • How did the substituted process incorporate stakeholder (public, proponent, government, etc) and Aboriginals' participation?
  • How did the substituted process generate information for and accommodate input from responsible authorities and other federal departments involved?
  • Were stakeholders, including Aboriginal groups, satisfied with the substituted process? What is the nature of any concerns raised?

Conduct of the Evaluation

The evaluation will be conducted by the Agency.

The evaluation will include a general account of the pilot substituted process, which will be developed through a fact-finding review of the NEB proceedings. This stage is being performed by the Agency with the cooperation of the NEB. The review will be based on public documents related to the substituted process that exist within the public domain and other NEB documents related to the Project and NEB procedures.

The evaluation will also include a survey, through structured interviews, of interested parties who participated in the Substitution. These participants either made oral statements, submitted written comments or acted as intervenors in the public hearing, and include stakeholders and Aboriginal parties, among others. The results of these interviews will be used as a supplement the fact-finding information where appropriate.

The interviews will explore such matters as whether interested parties had access to the appropriate information to help them to understand the Project and its potential impacts; whether in their view there was an opportunity for meaningful participation in the process; whether the means and requirements of participation were clear and understood; and whether they believe that the issues of concern to them were well considered as part of the process.

A third party external contractor may be used to conduct structured interviews using questions developed in consultation with the Agency. The results of the survey will be analysed by the Agency.

A survey of federal government environmental assessment and regulatory authorities will also be undertaken. The purpose of this element will be to determine facts associated with the participation of federal authorities in the substituted process.

The Agency will produce a report (the Report) setting out the results of the evaluation and considerations with regard to potential future application of substitution provisions by the Minister of the Environment.

Duration of the Evaluation

The fact-finding review will be completed by December, 2007 and will support the preparation of the participant experience survey. The survey will be completed by February 2008.

The Report will be posted on the Agency's Internet site in the spring of 2008.


1 Section 43