It is a singular honor to be the recipient of the inaugural ERQ Energy Bison, especially as the Kaiser Award has been established in memory of such a legendary pioneer in promoting Canadian energy regulation.^[1]

It is particularly fitting to be receiving the award here in Halifax where my career in Canadian energy regulation really began, more than 50 years ago, when I was retained as a consultant by the Office of the then Premier in the wake of Mobil Oil Canada’s announcement in 1971 that it had encountered oil in a well drilled on the western tip of Sable Island. The excitement generated by that discovery was short-lived — but, happily, my career was not!

The theme for this Forum — a new focus on Canadian energy sovereignty — is particularly judicious as it is certainly not the first time that energy sovereignty has preoccupied the national agenda. In the mid-1950s, the “Great Pipeline Debate”, surrounding the routing of what would become the TransCanada Mainline, precipitated the defeat of the federal government of the day. Canadian sovereignty was at the core of that debate. The Royal Commission that ensued emphasized the need for independent regulation of pipelines under federal jurisdiction and led directly to the enactment in 1959 of the National Energy Board Act (“NEB Act”)^[2] and the establishment of the National Energy Board (“NEB” or “Board”).

Is today’s energy sovereignty debate different? I suggest that it is — and it isn’t!

The energy challenge now facing Canada is widely described as a crisis and it is trite to say that crises present opportunity.^[3] In the present context, opportunity may be found in the widespread recognition that indeed Canada does face a serious challenge that must be met head on — something must be done. Evolving public opinion on the importance of energy development to Canada’s economic prosperity also appears to recognize the seriousness of the challenge and, by providing political support for appropriate responses, may contribute to identifying and implementing effective responses.

Responses to crises, however, also come with risks, perhaps the most serious of which is the risk of “responding” for the sake of being seen to be doing something. The real challenge of course is not to simply do “something”; rather, the challenge is to identify, and implement, solutions that address the real, not merely perceived, challenges at hand. And that is not an easy task, particularly in the field of energy policy and regulation where there are persistent, underlying realities that must be recognized and accommodated.

An overarching call for measures to address today’s challenges is to “simplify regulation.” Past experience with attempts to do just that, however, exposes the persistence of certain fundamental dynamics. Three specific examples illustrate that designing robust solutions to at least some of today’s challenges has dogged policy-makers repeatedly, in some cases for decades.

The first example relates to the widespread calls to simplify the review process for proposed energy projects by eliminating overlap and duplication — encapsulated in catchphrases such as “one project, one review” or the “single (regulatory review) window.” The concept of the “single window” is almost universally embraced; it is, however, neither new, nor as simple to implement as might at first appear.

In the early 1980s, I was a senior official with an administrative agency, the Canada Oil and Gas Lands Administration (“COGLA”), established under the National Energy Program to manage federal responsibilities with respect to oil and gas exploration and development in offshore and northern areas. COGLA was to be a “single window” for industry to deal with the federal government. In reality, however, industry had to continue to comply separately with a variety of other federal requirements. The failure was captured in the witty pun by a senior industry executive that “COGLA might be a single window, but the window has many panes!”

The reality is that major infrastructure projects, particularly energy projects, trigger multiple, diverse public interests that must be recognized and accommodated. That reality is reflected in the fact that calls to better coordinate — to “simplify” — the review process are still widespread, nearly 20 years after the establishment of the Major Projects Management Office (“MPMO”) in 2007 “to improve the performance of the review process for major natural resource projects…”^[4], as mandated by a federal Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects. The wide variety of government interests that are engaged is reflected in the fact that no fewer than 12 federal departments participate directly in the “horizontal initiative.” That reality is not going away!

Further, it is reported that legislation expected to be tabled by the new federal government in June to promote the “One Canadian Economy” will include measures aimed at providing faster regulatory approval for projects through a new “Major Projects Office.”

My second example illustrates the potential in undertaking any regulatory reform initiative of “unintended consequences.”

For more than 50 years, Canada in fact had a “single window” regulatory authority with responsibility for reviewing and certifying oil and gas pipelines under federal jurisdiction, namely, the National Energy Board. From its establishment in 1959, the NEB was mandated, in the broadest possible terms, to consider, among other specific matters, “any public interest that in the Board’s opinion may be affected…”^[5] While this formulation did not confer on the Board exclusive authority, it at least provided project proponents with a single point of entry into the federal regulatory maze.

The independence of the NEB was entrenched in the NEB Act. The tenure of Board members was secured by a formula for their removal through a process borrowed directly from the Supreme Court of Canada Act.^[6]

Most importantly, the Board was responsible for actually issuing certificates of public convenience and necessity, not merely for making a recommendation to Cabinet. While a Board decision to issue a certificate was subject to Cabinet approval, Cabinet could not amend or vary a Board decision; Cabinet could only approve or refuse to approve the decision of the Board. More significantly, Cabinet had no role where the Board decided to reject an application for a certificate. A refusal by the Board to issue a certificate did not even find its way to the Cabinet table.^[7] It was this feature of the formula established by the NEB Act that may have led the government in 2012 to introduce amendments that fundamentally changed the role of the Board.

In 2010, Enbridge filed an application with the NEB for approval of the Northern Gateway Project. Apparently, there was concern that, were the NEB to reject Enbridge’s application, the government would have no mechanism for reversing or amending the decision, should the government decide that the project was indeed in the national interest and should proceed, despite a decision by the Board to the contrary.

Whatever the motivation, the NEB Act was amended in 2012 to change the role of the NEB from that of decision-maker to that of making a mere recommendation to Cabinet, which in future could accept, reject or vary a Board recommendation.

In the event, the NEB in fact recommended approval of the Northern Gateway Project, Cabinet accepted the recommendation and a certificate was of public convenience and necessity for the Project was issued.^[8] The change in the role of the Board, resulting in for approving or rejecting pipeline applications being assumed by the Cabinet, proved to have been unnecessary.

It was, however, the government’s role in the initial approval of the Northern Gateway Project and the widespread controversy surrounding the Project that triggered the subsequent drive to “modernize” the NEB. That debate in turn contributed to the enactment of the Impact Assessment Act (“Bill C-69”),^[9] the abolition of the NEB and the establishment of the Canadian Energy Regulator.

The lesson relevant to the current debate about simplifying the regulatory process might be captured in the familiar adage “be careful what you wish for”!

My third example of challenges faced by efforts to simplify the regulatory review process relates to widespread calls to mandate fixed timelines for project approvals. Mandatory timelines for NEB reviews were included among the 2012 amendments of the NEB Act and thus were in place in December 2013 when Trans Mountain filed its application the proposed system expansion, the TMX Project. Final approval of TMX, however, was not forthcoming until February 2019, more than five years later. The Project finally came into service in 2024, nearly 10 years after the original application was filed.

Two observations about mandatory time limits. Firstly, such limits cannot be unconditional and must be accompanied by off ramps in order to anticipate the possibility, if not likelihood, of unforeseen circumstances requiring adjustments in project schedules, sometimes at the request of project proponents.

Secondly, mandatory timelines can directly challenge principles of procedural fairness. Indeed, the 2012 amendments to the NEB Act openly recognized this potential and stated bluntly that “considerations of fairness” must yield to the prescribed time limits.^[10]

Mandated timelines for approvals may have a role to play in improving the efficiency of the regulatory review process. However, their effectiveness ultimately rests on the commitment of each participant in the overall process, including project proponents, to fulfill its individual role in an effective, efficient and timely manner.

None of these three examples is intended to suggest that the challenges in simplifying the regulatory process for reviewing major infrastructure projects are insurmountable; obviously those challenges must be addressed. The point is that “simplification” is not so simple, certainly not as simple as many critics suggest — and as some politicians would have people believe.

Let’s hope that all interested parties will contribute constructively to addressing the challenges in Canada’s current regulatory process for reviewing major infrastructure projects, while recognizing and accommodating the multiple legitimate interests that are impacted by such projects. Let’s hope that the opportunity — or “crisis,” as many insist — does not go to waste and that down the road we do not look back and conclude, regretfully:

Plus ça change, plus c’est la même chose

Thank you. 

• * Formerly Co-Managing Editor, Energy Regulation Quarterly. This paper is based on remarks by the author on being presented with the inaugural Energy Bison Award, the Kaiser Award, at the 2025 ERQ Energy Law Forum, in Halifax on May 7, 2025.

  ¹ The Kaiser Award is named in honour of Gordon Kaiser, whose unwavering dedication as Co-Managing Editor of Energy Regulation Quarterly for over a decade and passing in 2024 left a profound impact on the publication and all who had the privilege of working with him.

• ² National Energy Board Act, RSC, 1985, c N-7, repealed, 2019, c. 28, s44 [NEB Act]. The NEB Act remained essentially unchanged for more than 50 years, from 1959 to 2012.

• ³ Churchill is often quoted as having said: “Never let a crisis go to waste!”, although there appears to be no record of him actually having said that.

• ⁴ Nature Resources Canada, “Major Projects Management Office Initiative (MPMOI)” (last modified 29 January 2025), online : <natural-resources.canada.ca/corporate/planning-reporting/departmental-results-reports/departmental-results-reports-2017–18/major-projects-management-office-initiative-mpmoi>.

• ⁵ NEB Act, supra note 2 s 52.

• ⁶ Supreme Court Act, RSC, 1985, c S-26.

• ⁷ See Rowland J Harrison, “The Elusive Goal of Regulatory Independence and the National Energy Board: Is Regulatory Independence Achievable? What Does Regulatory “Independence” Mean? Should We Pursue It?” (2013) 50:4 Alta L Rev 757.

• ⁸ The issuance of this certificate was subsequently set aside by a decision of the Federal Court of Appeal, on the ground that the federal government (not the NEB) had not met its obligations with respect to consultation relating to Indigenous rights. The federal government decided not to appeal that FCA decision, thereby in effect cancelling the Project.

• ⁹ Impact Assessment Act, SC 2019, c 28 s 1.

• ¹⁰ NEB Act, supra note 2 s 11(4).