Speaker: Dr. Nichole Dusyk
Date: November 28, 2018
Dr. Nichole Dusyk completed a postdoctoral fellowship at Carleton’s SPPA in 2018. Nichole’s research focuses on the intersection of energy governance and participatory politics. Recipient of a MITACS Elevate award, Nichole worked with SPPA faculty member Alexandra Mallett and the Pembina Institute on federal environmental law reform, focusing on the modernization of the National Energy Board. Nichole has a bachelor’s degree in electrical engineering from the University of Alberta, a master’s degree in Science and Technology Studies from Rensselaer Polytechnic Institute, and a doctoral degree in resource management and environmental studies from UBC.
Presentation
Dr. Dusyk’s presentation explored the past, present, and future of federal energy regulation in Canada. Homing in specifically on the history of the National Energy Board (NEB), pipeline debates past and present, and the current federal government’s move to modernize the federal energy regulator.
Dusyk began by recounting the historic origins of NEB and its evolution. The regulator was born out of debate over the TransCanada pipeline in the 1950s, and until Natural Resources Canada was created, and the NEB served both as a regulator and the primary policy advisor on energy issues to the government. Concerns over conflict of interest and bias within the NEB date back to the environmental assessment of the Mackenzie Valley Pipeline (MVP), which was proposed to transport natural gas from Alberta to Alaska through the Northwest Territories and the Yukon. The federal government responded by issuing a federal royal commission for the MVP led by Justice Thomas Berger, was held at the same time as the NEB proceedings for the proposal. The Berger inquiry was innovative in both its structure and the extent of indigenous consultation. Held over 18-months, the inquiry held public consultations with communities and indigenous groups along the pipeline route and provided intervention funding. While the NEB did not internalize these groundbreaking methods for some years, the Berger inquiry set a new tone, changing public expectations for what environmental assessment should look like.
Dusyk noted that the more recent Northern Gateway Pipeline (NGP) was a catalyst for a speedy deterioration of public opinion towards the NEB. During the NGP review, the Conservative federal government introduced several changes to the regulatory framework, included shifting decision-making authority to Cabinet, designating the NEB as responsible for environmental assessments, and adding the “standing test” provision, which required intervenors to be directly affected by the project to participate in the hearing. Many saw the federal changes a response to the outpouring of opposition to the NGP proposal. Perceptions of an assessment procedure tilted favour of the proponents was cemented with the NEB’s final approval of the project. These perceptions of bias were exacerbated by the NEB’s subsequent assessment of the TransMountain pipeline expansion, in which failure to adequately consult with Indigenous groups or include impacts of marine shipping led to the projects initial approval being quashed by the federal court of appeals.
Once elected in 2015 the Liberals moved swiftly to reform the federal environmental review process, which is currently underway with Bill-C-69 in front of the Senate. Notable changes include changing the name to the Canadian Energy Regulator, moving the responsibility for impact assessment to a single agency (the Impact Assessment Agency), the removal of the controversial standing test, as well as expanding the number of factors that need to be weighed before issuing approval, including the consideration of international commitments regarding climate change. Furthermore, the Act includes provisions to revamp the CER’s governance structure, which would separate the commission from day-to-day administrative activities, and improve conflict of interest provisions, and also adds several measures to increase Indigenous representation and integrate Indigenous knowledge.
With regards to climate, Dusyk notes that the changes are likely not enough. Crucially missing from the new legislation are benchmarks provided to guide decisions around climate change. However, she says there are reasons for hope. First, the replacement of the Board could instill change if the right people are appointed. Second, the inclusion of a requirement for a strategic assessment of climate change provides, at the least, an opening for the real consideration of climate, yet Dusyk argues this will of course require the necessary political will. And thirdly, global markets and politics could nudge Canada forward, as climate friendly policies increasingly become the norm. However, it is also possible that pressure from incumbents could cause the roll back of regulation.
Discussion
There were several interesting issues raised by seminar participants which allowed for a lively discussion surrounding the highly complex topic of environmental regulation in Canada. Many questions remained over how the federal regulatory framework could be further improved. One participant pointed out that maintaining the independence of regulatory bodies is critical for ensuring their legitimacy. Therefore, is it possible for the CER to remain autonomous if it continues to be located in Calgary, with industry in such close proximity? A second area of contention was the issue of public participation. While Bill C-69 aims to remove the standing test, Dusyk noted the importance of finding other ways to ensure public participation is valuable and structured. Concerning meaningful consultation with Indigenous Peoples, there is currently no criteria of what this means, and it continues to be a gray area in the law and the focus of much debate. Dusyk’s commented that there is a need for experimentation on this issue, because the system we currently have currently isn’t working. Thirdly, and related to participation, are assessment timelines. While the proposed Act includes an early planning phase, the overall assessment timeline was shortened. This brings up the ongoing question, how do we be inclusive of all perspectives, including Indigenous perspectives, while maintaining an efficient assessment process that occurs within reasonable timeframes?
Finally, there were questions over how the CER could be improved to address climate change. Dusyk again noted that adding thresholds and benchmarks to the legislation is essential to ensure new energy projects fit within Canada’s climate obligations. She also put forth the idea of a carbon budget, in which the amount of carbon Canada is allowed to emit is capped, and projects would be approved according to that basis. Furthermore, the CER could integrate Paris obligations into its annual energy forecasts, assess projects with Canada’s climate targets in mind, and ensure this by enshrining climate obligations within the CER mandate. However, Bill C-69 is still under review in the Senate, and with fierce opposition from industry, it remains possible that this incremental step towards adequate modernization may not go forward.
Precis by Jessica Leis and Silke Popescu, MA Sustainable Energy students.