(A) Recent Developments and Proposals

In recent years the timeline to complete Canadian regulatory reviews of proposed major projects – and particularly environmental assessments which are the key part of the project review process – has become a major political issue. Over the last decade or so, project proponents have consistently raised concerns about the speed and unpredictability of project review processes –principally at the federal level.  Complaints have also been made, and lawsuits have been commenced, by opponents of those projects including environmental groups, First Nations bands, and other interested parties alleging procedural and other flaws in the project review process – again principally at the federal level.

Motivated by many of the same concerns, we undertook a survey of the timelines to review major energy projects – those with estimated CAPEX of $1 billion or more (the “Project Survey”) for a presentation to the Canadian Energy Law Foundation in 2016.¹

Also, in response to these concerns and complaints, and given the significant impact of these projects on the economy, the Canadian federal government, in June 2016, directed the Minister of the Environment and Climate Change to “immediately review Canada’s environmental assessment processes to regain public trust and help get resources to market”.

In February 2018 the federal government introduced Bill C-69² to create an Impact Assessment Agency of Canada (the “Agency”) which would replace the existing Canadian Environmental Assessment Agency (“CRAA”).  Bill C-69 would also reform and rename the National Energy Board to create the Canadian Energy Regulator and would amend certain provisions of related federal project review legislation.

In its Consultation Paper on Information Requirements and Time Management³ (the “Consultation Paper”), released contemporaneously with Bill C-69, the federal government envisages two principal types of project review.  In the ordinary course the Consultation Paper articulates an objective that most reviews would be conducted by the Agency with a rough timeline of 510 days.⁴  For projects governed under the proposed Canadian Energy Regulator legislation (such as interprovincial or international pipelines and transmission lines) or the Nuclear Facilities Control Act⁵ (such as nuclear power plants) or which are likely to generate significant controversy and public concern, project reviews would be carried out by specifically appointed panels (“Review Panels”) with a rough timeline of 870 days.⁶

These timelines – falling roughly 18 to 30 months after the filing of an initial Project Description by a proponent – would, if actually implemented and adhered to, be in line with other project review processes currently employed by various Canadian provinces and by similar jurisdictions in other countries.  They are however ambitious in relation to the actual prior experience and practice of the federal government.

In this piece we look at recent actual experience with federal project review timelines to give some context for assessing the timeline proposals in Bill C-69.

(B) The Project Survey

The Project Survey covered the actual timelines for major energy project reviews at the federal and/or provincial levels which were completed from and after January 1, 2010 or which were substantially underway as of the effective date of the Project Survey, in June 2016. The Project Survey measured the time between the filing of a project description or equivalent and the issuance of a final decision to authorize a project – usually an environmental assessment certificate or equivalent approval. Our detailed results, together with applicable qualifications and disclaimers, are set out in the Project Survey itself.

We would note at the outset that our Project Survey necessarily involved a relatively small number of projects; that there are judgement calls about which projects should be included and how to measure both the starting and end points and directional; as well as the effective duration, of specific project reviews. The Project Survey provides a set of useful data points to help analyze the timelines for conducting reviews of major energy projects – but at the end of the day it is suggestive and illustrative, not definitive.

1. Federal Timelines in Practice

The federal projects covered in our Project Survey were noted in table 1.

Table 1 – List of Federal Projects Covered in Survey

Broken down by Project Category, federal timelines for major energy project reviews included in the Project Survey are noted in table 2.

Table 2 – Project Categories and Timelines

Overall, the time for conducting federal project reviews of major energy projects ranged from 19 to 104 months and averaged 56 months.

These federal timelines in practice are much longer than under applicable federal declaratory policy.  Over time the federal government has adopted various methods to try to complete project reviews over a roughly 24 to 36 month period.  Specific examples of attempts to devise approaches to deliver final project review decisions within this general time frame include:

• in 2007, a Cabinet Directive to improve regulatory performance;¹⁰
• from 2007 through 2010, service standards governing timelines for federal project reviews;¹¹
• in 2011, regulations establish specific timelines for completion of Comprehensive Studies undertaken by CEAA;¹²
• in 2012, the adoption of generally applicable legislated timelines in CEAA 2012;¹³
• In 2018, Bill C-69 with revised timeline provisions for federal project reviews.¹⁴

The existing federal practice – at least for major energy projects – hasn’t come close to meeting any of these declaratory ideals or objectives.

The federal timelines for project reviews appear to be materially longer than provincial timelines for reviews of roughly equivalent projects.  Provincial project reviews in our Project Survey included pipelines, transmission lines, electrical generation facilities, oil sands plants and LNG terminals – all in excess of the billion-dollar threshold.  The provincial project reviews in our Project Survey averaged 26.5 months to complete and virtually all were completed in less than 36 months.  Broken down by project category the comparison between federal and provincial timelines was as shown in table 3.

Table 3 – Comparison Between Federal and Provincial Timelines

Independent estimates¹⁵ confirm a generalized expectation that the time to complete a provincial project review is generally in the range of 18-24 months – and certainly within a band of 24 months (+/- 6).

Finally, though sample sizes of this were small, there is no clear evidence that the various timeline limits adopted either before or after CEAA 2012 have had any material effect.  Several major projects undergoing project review subsequent to the adoption of CEAA 2012 faced material delays beyond the “mandatory” maximum legislated timelines.  Project reviews were either late in starting or had the “clock stopped” for various reasons including compliance with new rules,¹⁶ responding to requests for fresh information from federal regulators¹⁷ or dealing with various federal legal or procedural mis-steps.¹⁸

The submission by Enbridge to the Expert Panel reviewing CEAA 2012 is well worth quoting on this point of the CEAA 2012 timelines:

“The 2012 changes to CEAA and the National Energy Board Act included the establishment of mandatory timelines.  However, legislated timelines have not resulted in predictability and consistency as expected.  This is primarily because the 2012 amendments introduced multiple opportunities for time extensions and time outs, for instance:

• Regulator deems application to be incomplete (clock does not start);
• Regulator issues information requests or requires additional studies (clock stops running);
• Minister and/or GIC may extend the time limit (more than one extension possible);
• GIC may refer the report back …for reconsideration.”¹⁹

Indeed, said Enbridge, their own experience was that review periods were actually increasing since the passage of CEAA 2012 even with its regime of legislated timelines.²⁰

Though the evidence is necessarily patchy and less than fully reliable, the timelines for project reviews in foreign jurisdictions with roughly comparable economic and environmental standards, and similar commitments to the rule of law, suggest that timelines for major project reviews are shorter than the Canadian federal project review process in practice and are much more consistent with the provincial ones. Consider:

• in the United States:
  • the Congressional Research Service recently found that the project reviews by FERC of natural gas facilities took on average 18 months and none had taken longer than 30 months;²¹
  • a DoE survey of over two decade’s worth of NEPA reviews indicated that the median review process took 21 months when the proponent was a third party applicant;²²
  • Congress has considered, and in some cases passed, various timeline limits for project reviews under US federal laws; virtually all timeline limits were in the 12-24 month range; none was longer than 36 months;²³
• In Australia, timelines for project reviews of major LNG facilities were generally within the range of 24 months (+/- 6).²⁴

2. Extended Federal Timelines

While it is commonplace to note that federal project review timelines are long, some have been particularly extended on any scale and by comparison to any jurisdiction in the world.  As we reviewed various projects for purposes of the Project Survey, we noted some key common procedural characteristics shared by many of the very longest and most controversial federal project review processes. See table 4.

Table 4 – Project Timelines and Review Process

The lengthiest federal processes have tended to be before Review Panels or the NEB. Each Review Panel has tended to adopt its own practices and procedures depending on its terms of reference and the composition of the particular Panel, which offers little opportunity for consistent adoption of best or most effective practices. In its own internal evaluation, Natural Resources Canada noted that the variations between the terms of reference for Review Panels as well as the variations in their process and procedures had resulted in a relatively less predictable project review process.²⁷

Moreover, Review Panels and the NEB tend to conduct their project review process in a more or less fully quasi-judicial fashion – replete with formal public hearings and oral testimony.  Historically the NEB and many Review Panels often permitted full cross-examination and/or extensive written information requests designed to test evidence as well as entertaining various interim motions to determine process and procedural issues.

It may not be a case of pure cause and effect, but there is a noticeable correlation between the very longest of review processes and their degree of judicialization and formality.

On the role that overly judicialized processes played in causing delays in the federal project review process, the Expert Panels were surprisingly direct.

The CEAA Panel noted in its final report that:

“Current quasi-judicial assessment policies are in most circumstances more formal, adversarial and intimidating than is needed.”²⁸

The CEAA Panel went on to recommend the adoption of looser and less judicialized processes by federal project review authorities, with greater emphasis on more informal working groups, collaborative and consultative processes rather than maintaining the current federal reliance on more formal public hearings and trial-type procedures.²⁹

For its part, the NEB Panel may have been sharper in their criticism of the formality and level of judcialization of the federal project review process.  In their final report, the NEB Panel noted:

“We heard that today’s [NEB] hearings are overly rigid and legalistic to a degree that limits the depth and quality of the engagement with the public and Indigenous peoples.  The broad perception . . . was that hearing proceedings are designed for lawyers and specialists and that average citizens are not on a level playing field.  Canadians told us that the design and conduct of hearings made them feel as though they were out of their depth.”³⁰

The NEB Panel went on to recommend a greater degree of flexibility in choice of procedures – there could well be some role for the formal hearings and trial-type discovery processes followed by the NEB to date.  But the emphasis should clearly shift to more creative, innovative and collaborative processes and should not be frozen in a particular form of quasi-judicial processes that is “rigid and inhuman”.³¹

The longest of the federal review processes have tended to follow and adopt the most deeply quasi-judicial procedures.  And other jurisdictions, such as Canadian provinces as well as FERC and the DoE in the United States or state-led project reviews in Australia have been significantly shorter and less judicialized than at least the longest and most controversial Canadian federal project reviews.

3. A Tale of Two Models

On further review of the results of the Project Survey, we have noted there is a particularly pronounced contrast between the usual project review process of the federal government and that of the province of British Columbia, both in terms of the time required to complete the process and the nature of their respective and usual public consultation process.

The BC timelines for reviewing major energy projects included in our Project Survey were as shown in table 5.

Table 5 – B.C. Timelines for Reviewing Major Energy Projects

The time that it took BC to conduct these project reviews ranged from 17 to 28 months and took an average of 24 months – markedly shorter than then timelines for federal project reviews.

The BC model for conducting project reviews has generally followed a timeline consistent with traditional expectations and with key international comparables – and overall has taken only about half the time as have the federal project review process to deliver reasonably acceptable and defensible project decisions.

Several key contrasts between the federal and BC processes are evident right on the face of the record.  The province of BC conducts its project review process principally if not exclusively through a single agency, the British Columbia Environmental Assessment Office (“BCEAO”), which has evolved a relatively consistent and predictable approach to public consultation and engagement.

The BCEAO favours a public consultation process involving notice and comment procedures rather than more fulsome quasi-judicial or trial-type procedures. The BCEAO describes its public consultation process as one that encourages participation in public meetings, open houses and other forums, and that encourages the public to review the record and make comments, generally through various in-person and electronic submissions. The BCEAO process also encourages the formation of informal working groups to convene key participants to review and understand core issues and concerns.

For each project review, the BCEAO issues a relatively consistent and detailed procedural order specifying the scope, procedures and methods by which the review must be conducted – both during any pre-filing and any formal review stage.³² These orders specify how public consultation must be carried out at all stages with an emphasis on various informal procedures that do not involve formal testimony in lengthy public hearings or the systematic delivery of extensive information requests to the proponent.

The available evidence suggests that these relatively more informal public consultation processes tend to be more expedited and more predictable than the quasi-judicial processes more widely employed at the federal level.³³ It is obviously harder to measure the respective qualities of these two models, but it is worth noting these most recent high-profile judicial cases involving the adequacy of particular project review processes have tended to strike down aspects of the federal project review process relatively more frequently than those conducted by the BCEAO.

4. Survey Conclusions

The data from the Project Survey was at least consistent with the following conclusions:

1. Federal timelines for major energy project reviews have generally been longer than 36 months and many have been substantially longer.
2. The mandatory timelines introduced in the Canadian Environmental Assessment Act, 2012 have not yet materially reduced federal timelines for major energy project reviews, at least not consistently down to a 24 month (+/-6) range – though the sample size for these types of project reviews is so far extremely limited.
3. Provincial timelines for major energy project reviews appear both materially shorter and more predictable than federal timelines and fall generally within a 24 month (+/-6) range.
4. There is a substantial correlation between the length of the review process and its level of judicialization, in terms of the nature and intensity of hearings and the procedureal complexity of the review process.

These general conclusions found support in Submissions filed by the proponent community during the recent federal review of its projects review process.³⁴

It was palpably and powerfully felt by members of the proponent community that federal project reviews were too long and were uncompetitive,³⁵ that the legislated timelines in CEAA 2012 were ineffective but that much more strictly enforced timelines could play a useful role;³⁶ and that various provincial project review processes were generally more efficiently administered.³⁷

(C) Prospects for Reform

Bill C-69 contemplates a project review process divided into three segments: a planning phase, an assessment phase and a decision phase.³⁸   In the ordinary course both initial planning and the assessment of a proposed project would be done by the Agency and a final decision would be made by the Minister.   For certain designated projects such as interprovincial or international pipelines and transmission lines, nuclear facilities or other high-profile and controversial projects any assessment would be carried out by a specially appointed Review Panel with the final decision likely taken by Cabinet.

The proposed timelines (in days) for each of these alternative processes would ideally be as follows:³⁹

Table 6 – Proposed deadlines (in days).

For several reasons, these time frames are likely more aspirational than realistic, particularly for the largest and more controversial projects.  First, these timelines ignore some of the actual procedural periods that would apply, for example to govern referrals to a Review Panel.   And they ignore the timing of the detailed procedural steps that must be taken to move from phase to phase under Bill C-69.  More importantly though each of the timelines in Bill C-69 is accompanied by a Praetorian guard of exceptions.⁴⁰  Any timeline can be extended by the Minister for 90 days  and by the Cabinet for virtually any amount of time.   Moreover, for projects referred to a Review Panel at the end of the early planning phase, the Minister can, right from the very outset, vary the timeline governing the Review Panel to assess and report on the proposed project.

The mechanics of the project review process in Bill C-69 place a great deal of emphasis on the early planning phase as a means to try to establish early consensus and allow meaningful dialogue about projects early enough so that they can be changed to reflect public concerns before too many expensive and irrevocable steps have been taken and commitments made.

As described in the Consultation Paper, proponents would initiate the project review process by filing a bare-bones initial Project Description.⁴¹  This would be used by the Agency as the basis for consulting with affected stakeholders, particularly Indigenous peoples.  Following a process of initial consultation, analysis by the Agency and feedback to the proponent, a more detailed Project Description would be filed with the Agency to allow a determination to be made about whether a formal project review is required and, if so, whether by the Agency or a Review Panel.⁴²

This may be realistic for smaller or even mid-size projects, but for larger and more controversial energy projects with CAPEX likely in the $5-$10 billion range and up, this seems like a very ambitious (likely unachievable) schedule.

Moreover, for the largest and most controversial projects the whole notion that this will materially improve dialogue and understanding could well be more wishful thinking than realistic.

Indeed, particularly for large and environmentally impactful energy projects, the real dynamics affecting the project have to be looked at in a broader context than just the formal project review process.   The internal planning process for a major energy project can easily take 18 to 36 months.  Before any meaningful Project Description is filed, a further 18 to 36 months can be required for analytical work, preliminary engineering and design and environmental field studies.  By the time any material initial filing is made, the proponents may have spent up to 5 years or more in investigating and analyzing the project.  Expenditures for projects of this scale and significance can be material before any single document is filed to trigger any form of project review.  At the point of filing of even an Initial Project Description as anticipated in the Consultation Paper, much planning by the proponent will already have occurred – modifications can be expensive to make and can challenge assumptions that may already be deeply embedded in the proponent’s analysis.  The essential point is that what the Consultation Paper assumes is an early planning stage may in fact be early only for regulatory purposes – not in reality.

Proponents are also likely to take only cold comfort from the “legislative timelines” in Bill C-69.  Legislative timelines were embedded in CEAA 2012 but in a number of controversial and high profile energy projects they were not a meaningful constraint on a prolonged federal project review process.

The Consultation Paper invites comments on when the federal time clock can be stopped – a major complaint and concern of project proponents.  There will be a natural limit however to the impact that even an enhanced code of conduct can have on starting or stopping the clock for purposes of effectively controlling timelines.  Virtually all jurisdictions which have accepted timelines or limits on project reviews permit stoppages where supplemental information is required by regulators or where new laws or regulations require fresh or enhanced disclosure or analysis.  At the end of the day, regulatory and political attitudes and the application of a common sense “rule of reason” in the conduct and administration of the project review process is just as important as, and maybe even more important than, any formal timeline rules.

The proposals in Bill C-69 and the prospects for realistic reform in the timing of federal project reviews need to be considered in light of history.

There have been 25 years of virtually continuous complaints from the proponent community about the speed of federal project reviews – or more precisely about the lack of speed.  There have been more than a decade’s worth of federal directives, policies, service standards and even legislated timelines, all attempting – so far, unsuccessfully – to speed the federal project review process along.

At some point, one cannot sensibly either continue to blame, or attach too much hope to, any specific timeline legislation or regulation.  It may just be that the political realities and incentives facing the federal government are insufficient to make it a priority to push project reviews to completion in a timely fashion.  If so, formal rules will continue to be insufficient and ineffective to induce greater federal efficiency in project reviews.  We have most likely reached the point where major project proponents will have to lobby for or campaign to bring about a political change in priorities at the federal level that are more conductive to economic growth and project approvals.  Either that, or they may just choose to invest in other, more pro-growth, jurisdictions.

* Jonathan Drance was a senior partner and in January 2014 he transitioned to being a consultant to Stikeman Elliott. He has specialized expertise in project development and financing, including undertaking various activities in M&A and the capital markets relating to capital projects and infrastructure. From 2008 to 2010 Jonathan served on the Board of BC Hydro and, at various times, served as Chair of each of its Corporate Governance Committee and its Capital Projects Committee.

1. Kurtis Reed, Bradley Grant, Cameron Anderson and Jonathan Drance, “Timing of Canadian Project Approvals: A Survey of Major Projects” (2016) 54:2 Alberta L Rev 311; And see our updates to the Project Survey on SE Energy: Jonathan Drance, Glenn Cameron and Rachel Hutton, “The Timing of Major Energy Project Reviews” (11 May 2017) and “A Tale of Two Models: the Timing of Major Energy Project Reviews” (8 June 2017).
2. Bill C-69, 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, 1^st Sess, 42^nd Parl, 2018, (first reading 8 February 2018).
3. Government of Canada, “Consultation Paper on Information Requirement and Time Management Regulations”, (Ottawa: Government of Canada, February 2018) [Consultation Paper].
4. Ibid, at 6.
5. Nuclear Facilities Control Act, SC 1997, c 9.
6. Consultation Paper, supra note 3 at 6.
7. Calculations of applicable timelines were all current as of the date of the Project Survey, in June 2016. The timelines for cerain specified projects, including Trans-Mountain Expansion, Energy East and Pacific Northwest LNG were estimated and where the project review process was not complete those results are shown as set out in the Project Survey. Since the Project Survey, the Trans-Mountain Expansion and Pacific Northwest LNG project reviews have each been completed substantially, as estimated in the Project Survey; the Energy East application has been withdrawn.
8. Ibid.
9. Ibid.
10. See Canada, Major Projects Management Office, Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects, (Ottawa: Government of Canada, 2007).  The Cabinet Directive’s key goal was (in section 5.3 of a related memorandum of understanding) “to achieve the commitments in Budget 2007 to cut in half the average regulatory review period for large natural resource projects, from four years to about two years . . .”
11. See Natural Resources Canada, Audit of the Major Projects Management Office, Project AU 1017, (Ottawa: NRCan, 2010). The Audit Report describes (on p 5) existing service standards providing for a 24-28 month project review process, depending upon the type of review required. For Comprehensive Studies this would include a 4 month Project Agreement Phase following the filing of a Project Description followed by a 24 month period to complete the Comprehensive Study and issue any related federal permits.
12. Establishing Timelines for Comprehensive Studies Regulation, SOR/2011-139. Provided for a 90 day review period following the filing of a Project Description to determine if a Comprehensive Study was required (section 3.1) and thereafter a 365 day period to complete the Study (section 5.1).
13. Canadian Environmental Assessment Act, SC 2012, c 19, s 52 [CEAA 2012].  CEAA 2012 provided for a 45 day initial screening process (CEAA 2012, s 10).  Thereafter project reviews had to be conducted within a period of 12 to 24 months, depending on the nature of the review and subject to specified exemptions or exceptions (section 27(2) and 38(3)); See also Sandy Carpenter, “Fix the Energy Approval Process in Canada: An Early Assessment of Bill C-38 and Other Thoughts” (2012) 50:2 Alta L Rev 229 at 239.
14. Bill C-69 provides for an initial 180 day period following the filing of a Project Description to review and consult about the project (section 12).  Any subsequent review by the Agency must be completed within 300 days (section 28(2)) and any review by a Review Panel must be completed within 600 days (section 37(1)).  Final decisions by political authorities must be completed within a period of 30-90 days, depending on whether the decision is by the Minister or by the Governor in Council (section 65).  All timelines are subject to specified exemptions and exceptions.
15. Worley Parsons, Environmental Regulation: An International Comparison of Leading Oil and Gas Producing Regions, report produced by Worley Parsons and commissioned by the Canadian Association of Petroleum Producers (WorleyParsons, 2014).  See page 13, where the project review process of the province of Alberta was found to generally take up to 18 months to complete – roughly comparable to jurisdictions such as Queensland, Australia; Norway and the UK and somewhat shorter than US federal project reviews in North Dakota and the Gulf Coast.
16. For example, to comply with new analytical and disclosure obligations on upstream carbon emissions introduced in January 2016.  See Major Projects Management Office, MPMO Tracker – Pacific Northwest LNG Project and Major Projects Management Office, MPMO Tracker – Trans Mountain Oil Pipeline Expansion.
17. Review of the Pacific Northwest LNG Project was formally paused five times for an aggregate period of over 15 months as the proponent was required to provide additional information.  See Major Projects Management Office, MPMO Tracker – Pacific Northwest LNG Project.
18. Review of the Trans Mountain Oil Pipeline Expansion Project was paused for [5] months to resolve a conflict and evidentiary issue when the federal government appointed an expert witness for the proponent to the National Energy Board.  See Allison Sears, “Over the First Hurdle and into the Sharks: The NEB Recommends Approval of the Trans Mountain Pipeline Expansion Project” (30 May 2016), Stikeman Elliott, online: < https://www.stikeman.com/en-ca/kh/canadian-energy-law/over-the-first-hurdle-and-into-the-sharks-the-neb-recommends-approval-of-the-trans-mountain-pipeline-expansion-project> at note 1.
19. Enbridge, Submission to the Expert Panel Review of Environmental Assessment Processes (December 2016) at 7 [Enbridge Submission].
20. Ibid, at 7 at footnote 10.
21. US, Congressional Research Service, Paul W. Parformak, Interstate National Gas Pipelines: Process and Timing of Project Application Review, (R43138) (Washington: US Government Printing Office, 16 January 2013) at note 12 (average length of review) and at note 16 (longest citied review period).
22. US Department of Energy, Measuring DOE’s EIS Process, (2017) 92 NEPA: Lessons Learned Quarterly Report 1. Environmental Impact Statements issued by DoE from 1994 to 2016 in response to applications by third parties for approvals, permits or financial assistance, the median time for conducting a project review was roughly 21 months.  The median time to complete project reviews for DoE – sponsored programs and projects was roughly 31 months.
23. Paul Parformak, Congressional Research Service, supra note 21 at 13 and 14.  See also US, Presidential Office, Presidential Executive Order to establish discipline and accountability in the US federal project review process, (15 August 2017) s 4(a)(i)(B) [Executive Order] – including a directive to complete reviews of major new infrastructure projects not more than an average of 2 years, measured from the date of publication of a Notice of Intent to prepare any environmental impact statement.
24. For example see the review process for Australia Pacific LNG Project by Queensland, Australia.  From initial filing until final approval, total elapsed time was roughly 23 months.  See Queensland Government, Department of State Development, Manufacturing, Infrastructure and Planning, “Assessments and Approvals” (2011), online: <http://statedevelopment.qld.gov.au/assessments-and-approvals/>. From interviews/discussions with Australian counsel, common expectations for timelines to review LNG projects were generally consistent with experience in Australia Pacific LNG.
25. Supra note 7.
26.   Ibid.
27. See Natural Resources Canada, “Evaluation of the Major Projects Management Office Initiative”, (Ottawa: NRCan, 2012) at 55 and 56.
28. Canada, Minister of Environment and Climate Change, Building Common Ground: A New Vision for Impact Assessment in Canada, by the Expert Panel for the Review of Environmental Assessment Processes, (Ottawa: Canada Environmental Assessment Agency, 2017), online: <https://www.canada.ca/en/services/environment/conservation/assessments/environmental-reviews/environmental-assessment-processes/building-common-ground.html> at 39 [Building Common Ground].
29. Ibid at 58.
30. Natural Resources Canada, Forward, Together: Enabling Canada’s Clean, Safe and Secure Energy Future, by the Expert Panel on the Modernization of the National Energy Board, (Ottawa: NRCan, 2017), online: <https://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/pdf/NEB-Modernization-Report-EN-WebReady.pdf> at 70 [Forward, Together].
31. Ibid at 72.
32. See for example the Section 11 Order, dated June 6, 2013, issued by the BCEAO in its review of LNG Canada’s proposed LNG Export Terminal. See in particular Part F (Working Groups), Part G (Consultation with Aboriginal Groups) and Part J (Public Consultation). The Section 11 Orders issued for the other major energy projects included in the Project Survey were substantially similar.
33. The BCEAO process tends to resemble the project reviews conducted by the Federal Energy Regulatory Commission (“FERC”), at least for interstate pipelines and other major gas facilities under its jurisdiction. For these project reviews, FERC tends to use a relatively informal public consultation process including a range of ‘notice and comment’ procedures, open houses and public meetings. FERC has the power and authority to conduct quasi-judicial ‘trial type’ hearings in connection with project reviews, but does so infrequently. See FERC, Pre-Filing Environmental Review Process at www.ferc.gov/resources/processes/flow/lng-1-text.asp and Paul Parformak, Congressional Research Service at 5.
34. The public consultation portion of the federal review was effectively delegated to two Expert Panels: the Expert Panel for the Review of Environmental Assessment Processes (the “CEAA Panel”) and the Expert Panel on the Modernization of the National Board (the “NEB Panel”).
35. On the length of federal project review processes adversely affecting Canada’s competitiveness, see various submissions to the several Expert Panels, including the Enbridge Submissions, supra note 19 at 1; and submissions by Canadian Association of Petroleum Producers (CAPP) December 2016 at 2-9; Canadian Energy Pipeline Association (CEPA) (March 2012) at 1; Syncrude at 2; BC Business Council (December 2016) at 3.  A survey by Worley Parsons for CAPP, “International Review of Environmental Assessment Processes” (December 2016 – 307074-02W-ENREP-0001) concluded that Canada’s project review and general licensing and permitting processes were among the best in the world for inclusiveness and thoroughness but did not fully implement best practices employed in jurisdictions such as the US, Australia and Norway to improve timeliness.  While supporting key elements of the Canadian federal project review process, the Worley Parsons survey concluded (page 23) that “Canada currently has one of the most expensive, time and resource-consuming [project review] processes in the world”.
36. See, in particular, Enbridge Submissions, supra note 19 at 7; Forward, Together, supra note 30, at 5, 6 and 20.
37. Submissions from the proponent community were generally supportive and not critical of province project review processes – and there was widespread support for substitution or deviation or similar arrangements to effectively leave project reviews to affected provinces rather than the federal government.  See submissions by CAPP, supra note 35; BC Business Council, supra note 35 at p.4.
38. Consultation Paper, supra note 3 at 6.
39. Ibid.
40. See Bill C-69, supra note 2.
41. Consultation Paper, supra note 3 at 3.
42. Ibid at 4.