Backgrounder: Testing of evidence at the NEB

1. How is a project application tested at the NEB?

An application kicks off the National Energy Board’s assessment process for a project. Assessment processes can take many forms, and incorporate a combination of formats They can range from a process where impacted people can provide written comments to the Board, to a written public hearing, to an oral public hearing [see “Types of public hearings at the NEB” for more detail]. However, all of these formats incorporate a testing and challenging function – no application for a project is approved without a comprehensive and science-based review of, among other things, the engineering specifications and potential safety impacts, the environmental and socio-economic impacts, the economic implications, and the possible impacts on Indigenous rights and interests.

The NEB has professional staff from multiple disciplines, such as engineering, socio-economic and environmental assessment and economics. These staff are dedicated public servants whose job it is to scrutinize the project application, and provide advice to the Board whether there are issues or gaps with what is presented. The Board will then require the proponent to provide additional information, commitments or explanations until the Board is satisfied that the application is sufficiently complete to proceed to further assessment. This does not mean that the Board accepts all of the proponent’s information at this stage – it just means that the application is “ready” for further testing and challenge by the Board and external participants.

The Board uses the subsequent steps in the assessment process to gather additional information it needs to make a decision or recommendation on whether the project is in the “present and future public convenience and necessity” (or in other words, in the Canadian public interest). This information comes from a variety of sources, including robust written questions/interrogatories (“Information Requests” or IRs) to the proponent by both the Board and other participants in the process. It also includes information provided directly to the Board from other participants, which may support or contradict the proponent’s information. These steps ensure that the proponent’s evidence is thoroughly tested, the project is comprehensively assessed and all relevant information about the project and its potential impacts is available to inform the Board’s decision or recommendation.

2. How is a project improved through the assessment process?

NEB staff are intimately involved in the regulatory oversight of a pipeline project, from application to construction and operation to eventual abandonment. This involvement means that the NEB has significant experience and expertise to ensure that, at the project assessment stage, all known issues related to pipeline construction and operation are considered, and any learnings from other projects can be applied to new projects through conditions or the post-approval processes and the NEB’s regulatory oversight.

In addition, the information gathered from participants and the proponent in an assessment process, in combination with the final argument provided to the Board, allows the Board to impose improvements to a project by way of conditions that mitigate impacts or enhance benefits. If the project receives approval, the proponent must comply with these conditions, as well as any requirements under the NEB Act and its regulations and any amendments to the regulations that may be made. The Board retains ongoing oversight over the project and has a variety of tools available to it to enforce compliance, including inspections, audits and administrative monetary penalties.

3. Is oral cross-examination required at NEB hearings?

No. Generally, oral cross-examination is not required for NEB assessment processes due to the nature of the decisions or recommendations being made and the interests under consideration. In the vast majority of cases before the Board, there are diverse opinions and evidence about what the world should look like, what the Board’s decision or recommendation should be, and what actions the Board should take as a result.

NEB hearings generally do not involve the assessment of serious issues of credibility related to factual events nor are fundamental issues, such as individual liberty, at stake. This is unlike a criminal trial, where a court may have to determine what actually happened in the past based on conflicting testimony and the liberty of the accused is at stake. When these issues are in play, there is typically a legal right to orally cross-examine witnesses.

However, applications before the Board generally involve considering events that may happen or assessing what is needed in the future and what should be done. There can be and are differing views or perspectives on those matters without any view being right or wrong. Often, the Board is determining which view is more likely, reasonable or preferable given all the evidence before it, through balancing, weighing and integrating multiple considerations.

Even if there are issues of credibility in a few cases, other factors also have to be considered, and it is not necessarily the case that credibility alone is a determining factor in whether cross-examination is offered. The key question is whether, considering all the circumstances, the people whose interests are directly affected have a meaningful opportunity to present their case fully and fairly. One of the circumstances that must be considered is the legislated time limit for assessment processes, with which the Board must comply.

It is important to note that the absence of oral cross-examination does not mean that the evidence of the proponent is not tested or challenged – it is thoroughly tested and challenged by the NEB’s expert staff, and through the written questioning process and the filing of information that comes to different conclusions, and through the submission of final argument.

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