CANADA ENERGY REGULATOR IN THE MATTER OF the National ...

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CANADA ENERGY REGULATOR

IN THE MATTER OF the National Energy Board Act, R.S.C. 1985. c. N-7, as amended and the regulations made thereunder;

AND IN THE MATTER OF the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 37, as amended, and the regulations made thereunder;

AND IN THE MATTER OF an application by NOVA Gas Transmission Ltd. for a Certificate of Public Convenience and Necessity and other related approvals pursuant to Part III and Part IV of the National Energy Board Act;

AND IN THE MATTER OF Hearing Order GH-003-2018 and National Energy Board File Number OF-Fac-Gas-N081-2018-03 02.

2021 NGTL System Expansion Project

Written Final Argument of NOVA Gas Transmission Ltd.

October 31, 2019

To: The Secretary Canada Energy Regulator Suite 210, 517 Tenth Ave SW Calgary, AB T2R 0A8

NOVA Gas Transmission Ltd. Final Argument Hearing Order GH-003-2018

October 31, 2019 Page 1 of 29

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I. Introduction

1. This is the final written argument of NOVA Gas Transmission Ltd. (“NGTL”) for the 2021 NGTL System Expansion Project (“Project”).

2. The Project is a proposed expansion of NGTL’s integrated natural gas pipeline system consisting of approximately 24,000 km of pipeline, associated compression and other facilities located in Alberta and British Columbia (“NGTL System”). The Project will expand pipeline capacity to transport gas from areas of increasing natural gas production in the Peace River Project Area (“PRPA”) to intra-basin and export markets.1 The Project consists of approximately 344 km of NPS 48 pipeline loops in eight sections in west-central Alberta, three compressor station unit additions and related ancillary facilities including a control valve, mainline valve sites, launcher and receiver facilities, and temporary infrastructure.

3. NGTL’s application for the Project is made pursuant to Parts III and IV of the National Energy Board Act (“NEB Act”).2 NGTL has demonstrated through its evidence that it has met the requirements of the NEB Act for the issuance of a Certificate of Public Convenience and Necessity (“CPCN”) for the Project. The evidence also supports NGTL’s request under Part IV of the NEB Act to include the costs of the Project facilities in the existing NGTL System rate base and to apply the existing NGTL System toll methodology, as it may change from time to time, to services that utilize the Project facilities. Further, the evidence on the record supports a finding by the Canada Energy Regulator (“Regulator” or “CER”) under the Canadian Environmental Assessment Act, 20123 (“CEAA 2012”) that the Project is not likely to cause any significant adverse environmental effects. NGTL submits that the Project is in the public interest and should be approved as applied-for.

II. Rationale for the Project

4. The NGTL System is a physically and commercially integrated pipeline system that connects natural gas supply areas across the Western Canada Sedimentary Basin (“WCSB”) to intra-basin markets and end-use customers in the WCSB as well as ex-basin markets through interconnections with major downstream pipelines. The facilities that comprise the Project reflect NGTL’s long-standing design process that ensures facility development addresses customer and industry needs in an economic, efficient and environmentally responsible manner.

5. The Project is urgently required to increase aggregate NGTL System capability to transport gas from the PRPA where supply is growing on the System to growing market demand in

1 A92619-1, PDF 6.

2 RSC 1985, c N-7.

3 SC 2012, c 19, s 52.

https://apps.neb-one.gc.ca/REGDOCS/Item/View/3577322



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eastern Alberta and at the East Gate (“EGAT”).4 Customers have signed long-term contracts for firm receipt and delivery transportation services that will exceed the capacity of the NGTL System beginning in 2021.5 The facilities applied for in this Application are commercially required to be in-service by April 2021 to provide transportation capability to allow NGTL to meet the existing and future supply and market requirements for WCSB gas.6

6. The need for the Project is supported by NGTL’s forecasts of gas supply and demand for the NGTL System. Together with the contractual underpinnings, this evidence demonstrates that the Project facilities will be used and useful throughout the economic life of the Project.7

7. The need for the Project has not been challenged by any of the parties in this proceeding, and several intervenors expressed support for the commercial need for the Project and the contractual in-service date.8 For example:

(a) TransGas Limited stated that “the Project is a critical component of TransGas’ long-term plan to satisfy current and growing natural gas demand in Saskatchewan.” TransGas also stated that denial of the application, or a significant delay to the Commission’s approval of the Application, would have “real impacts on TransGas’ ability to serve its customers.”9

(b) The Canadian Association of Petroleum Producers (“CAPP”) stated that CAPP members who are shippers on the Project have a “vital interest” in the Project and the timely disposition of NGTL’s application;10

(c) Canadian Natural Resources Limited stated that the Project is “required to maintain the competitiveness of the WCSB”;11

4 A92619-1, PDF 56 and 69-70.

5 A92619-1, PDF 72.

6 A92619-1, PDF 55.

7 A92619-1, PDF 58.

8 See, for example, Canadian Association of Petroleum Producers submission (A94915), Canadian Natural Resources Limited submission (A94943), Shell Canada Limited submission (A94941), Encana Corporation submission (A94942), Chevron Canada Resources submissions (A94888 and A99805), TransGas Limited submission (A98955-2) and ATCO Power Canada Limited submission (A94797).

9 A98955-2, para 32. See also paras 3 and 15-17.

10 A94915.

11 A94943.











https://apps.cer-rec.gc.ca/REGDOCS/Item/View/3768935







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(d) Shell Canada Limited stated that the Project is “necessary to provide incremental pipeline capacity and transport for natural gas from the Peace River Project Area (PRPA) to intra-Alberta and export markets”;12 and

(e) Chevron Canada Limited stated “Any delay in the Project schedule would…erode the competitiveness of the basin relative to other oil and gas investment opportunities in North America”.13

8. These submissions reinforce the need for the Project and its urgency.

III. Project Benefits

9. NGTL presented uncontroverted evidence on the considerable benefits the Project will provide to local, provincial and the federal economies. Benefits accrue both from Project spending and by providing necessary transport of an essential commodity.

10. The Project will result in a $2.3 billion capital expenditure as well as additional operational expenditures on an annual basis.14 During construction, the Project is estimated to directly increase Alberta’s GDP by $386 million.15 The total economic impact (direct, indirect and induced) on Alberta is projected to be $1.22 billion in GDP and $817 million in labour income.16 During operations, the Project is projected to contribute approximately $580,000 annually to Alberta’s GDP.17 During operations, the Project is also estimated to contribute $5 million in property taxes to several counties as well as $4.6 million in federal and $3.7 million in provincial tax revenue.18

11. The Project will also provide benefits to Aboriginal groups through NGTL’s Aboriginal Contracting and Employment Program, and existing users of the NGTL System and gas producers in Western Canada through providing incremental capability to accommodate growth in both domestic gas production and demand.19 This growth will in turn result in numerous economic benefits, including jobs, tax revenues and royalties, that will benefit many Albertans and Canadians.

12 A94941.

13 A99805.

14 A92619-1, PDF 46.

15 A92619-1, PDF 46.

16 A92619-1, PDF 46.

17 A92619-1, PDF 46.

18 A92619-1, PDF 46.

19 A92619-1, PDF 55-56.











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IV. Additional Uncontested Evidence

12. NGTL notes that the following evidence was not contested by any parties in this proceeding:

(a) NGTL’s ability to safely construct and operate the Project;20

(b) NGTL’s ability to finance the Project;21

(c) availability of supply and market demand for incremental capacity;22

(d) adequacy of contractual underpinnings for the Project;23

(e) NGTL’s system design process;24 and

(f) Project technical design and sizing.25

13. On each of these matters, the Commission should accept NGTL’s evidence as it is uncontroverted.

14. Similarly, no parties have disputed the appropriateness of NGTL’s proposed toll treatment for the Project. NGTL proposes to treat the costs for the Project on a rolled-in basis, and to determine the tolls for services in accordance with the NGTL rate design methodology in effect, and as approved, at any given time.

15. For integrated pipeline systems like the NGTL System, the National Energy Board (“NEB” or “Board”) has consistently considered it appropriate to roll in the costs of system expansions unless the proposed expansion provides a custom service or is not sufficiently integrated with the existing system. For example, in the Board’s decision on the 2017 NGTL System Expansion Project, the Board stated:

The Board finds the proposed tolling methodology (rolled-in) proposed by NGTL to be appropriate for the circumstances of this Project. The rolled-in tolling methodology is consistent with NGTL’s long-standing tolling practice for system expansions. The Board is of the view that the use of NGTL’s current tolling methodology is supported by the fact that the applied-for Project facilities would be located within the NGTL System existing footprint and would result in the

20 See, for example, A92619-1, PDF 125-160 and A92619-3, A92619-4, A92619-5 and A92619-16.

21 A92619-1, PDF 91-92.

22 A92619-1, PDF 53-73.

23 A92619-1, PDF 79-85.

24 A92619-1, PDF 54-58.

25 A92619-2.













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same tolls being applied to all shippers using the same transportation services over the same facilities.26

16. NGTL’s evidence includes: (i) the Project is required to meet the aggregate demand for receipt and delivery service across the NGTL System; (ii) the Project’s facilities will be fully integrated with the rest of the NGTL System; and, (iii) the services offered on the Project facilities will be the same services as those offered across the remainder of the NGTL System.27 As a result, and based on the Board’s established approach to tolling for pipeline expansions, NGTL submits that its proposed cost and toll treatment for the Project is appropriate and should be approved by the Commission.

V. System Design and Facility Alternatives

17. NGTL followed its established facility planning process to determine the appropriate facility set for the Project and the appropriate size of the proposed facilities.

18. NGTL’s hydraulic simulations identified that the current and planned NGTL System facilities will not be able to accommodate the peak day design flow requirements of its customers starting in April 2021.28 As a result, NGTL identified two possible flow paths on the System that could be expanded to meet aggregate System needs, and the facility set associated with each flow path that would be required to meet the design flow requirements. The first option, called the “South Build”, would follow the Grande Prairie Mainline (“GPML”) and Edson Mainline (“EDML”) along the western portion of the NGTL System.29 The other alternative evaluated, the “North Build”, would expand the flow path along the Northwest Mainline and North Central Corridor across the north portion of the NGTL System.30 NGTL determined that the North Build would require more than double the length of new pipeline facilities (820 km) and twice as many compressor units (6 units) as compared to the South Build. NGTL selected the South Build as the preferred flow path and facility set for the Project because it would minimize the length and footprint of new facilities and require less capital than the North Build ($2.3 billion for the South Build as compared to $4.7 billion for the North Build).31

19. Overall, the proposed facility set will result in the most efficient expansion of the NGTL System. As noted above, NGTL’s system design process has not been challenged by any party and NGTL’s evidence in this regard is uncontroverted.

26 NEB Reasons for Decision GH-002-2015, June, 2016, p 158.

27 A92619-1, PDF 87.

28 A92619-1, PDF 72.

29 A92619-1, PDF 74.

30 A92619-1, PDF 74.

31 A92619-1, PDF 75.








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VI. Pipeline Route Selection

20. Once NGTL determined the preferred general facility set for the Project through its system design process, it designed the route and specific facility set to minimize potential adverse effects in accordance with established routing criteria.32 For each pipeline loop component of the Project, NGTL sought to parallel existing or proposed disturbances to the extent possible. Paralleling existing NGTL pipelines and other linear disturbances is a key component of NGTL’s route selection criteria because it (i) typically results in the shortest length of pipeline between the upstream and downstream “control points” on the existing System; (ii) allows NGTL to locate a portion of the Project construction workspace on the existing NGTL right-of-way (“ROW”), thereby reducing the amount of new Project footprint required; (iii) reduces environmental impacts and fragmentation associated with creating new linear features; and (iv) is more efficient from an operations perspective.33

21. For these reasons, NGTL’s proposed route for the Project’s pipeline components deviated from paralleling existing disturbances only in exceptional cases, such as where a parallel alignment would pose safety issues, conflict with third party facilities, or require watercourse crossings at undesirable locations.34 In addition, NGTL has made micro-routing adjustments to avoid site-specific concerns identified by landowners, Aboriginal groups and environmental studies.35 Overall, approximately 86% (296 km) of the proposed pipeline route parallels existing NGTL ROW or other existing linear disturbances.36

22. Alexis Nakota Sioux Nation (“ANSN”) expressed concern with NGTL’s proposed routing for the Project adjacent to the GPML through the Little Smoky caribou range.37 NGTL evaluated two alternative routes that would avoid the Little Smoky caribou range but determined that both of these routes would be inferior to the proposed route.38 First, each alternative route would require significantly longer pipeline lengths than the proposed route (43 km of pipe for the proposed route within the Little Smoky caribou range vs. 83.3 km and 106.6 km for the alternative routes).39 Consequently, the alternative routes would result in a much larger construction footprint than the proposed route and would take longer to construct. Second, each alternative route would involve an absolutely greater length of “new cut”, i.e., right-of-way that is not adjacent to existing disturbance. This would result in greater fragmentation of land, new access and increased construction footprint. Third,

32 A92619-1, PDF 93-94.

33 A92619-1, PDF 93.

34 A92619-1, PDF 94-98.

35 See, for example, Transcript Vol. 12, paras 5793-5794.

36 A96812-1, PDF 35.


38 C00542-1, PDF 31-37.

39 C00542-1, PDF 32.









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each alternative would result in additional disturbance to grizzly bear zone and key wildlife and biodiversity zones, and would intersect additional watercourse crossings and wetlands. Combined with the longer length and “new cut”, this would result in higher potential environmental effects and impacts to Aboriginal traditional land and resource use (“TLRU”).40

23. Routing around the Little Smoky caribou range, without also building compression in addition to what is applied for, would also add less capacity to the NGTL System than the proposed route and would mean that the System could not accommodate design flows starting in 2022.41 If sufficient compression was added downstream to compensate for the longer alternatives, a capacity addition equivalent to the applied-for routing could be obtained but at a significantly greater capital cost (between $350 million and $500 million) and with additional impacts to the environment and other parties at those locations.42

24. Further, each alternative would result in additional operational costs post-construction, during the operations phase. The applied-for route includes a tie-in at mainline block valve GPM40, which is within the Little Smoky caribou range. Routing around the range would eliminate the possibility of a tie-in at GPM40. The lack of a connection at GPM40 would mean that over 100 km of NGTL System facilities would need to be placed out of service during maintenance activities, as compared with less than 40 km if the Project connected to GMP40.43 It would also mean shippers would bear the costs of operation and maintenance of at least 40 additional kilometers of pipeline that is unnecessary for the life of the asset.

25. Overall, NGTL determined that the proposed Project route through the Little Smoky caribou range best aligns with its routing criteria and environmental considerations and is the most appropriate route for the Project.44 While the proposed route has the lowest overall impact, in recognition that the applied-for routing is through caribou range, NGTL proposes to reduce and offset Project effects on caribou, as discussed in more detail below.

VII. Environmental Matters

NGTL appropriately considered impacts to wildlife and the environment in the ESA

26. NGTL’s Environmental and Socio-Economic Assessment (“ESA”) assessed the potential effects of the Project in accordance with the NEB’s Filing Manual requirements, methodologies that have been accepted by the NEB for past projects, and Canadian

40 C00542-1, PDF 33-34.

41 C00542-1, PDF 34.

42 C00542-1, PDF 33.

43 C00542-1, PDF 33.

44 C00542-1, PDF 36.








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Environmental Assessment Agency (“CEAA Agency”) guidance.45 These methods produced conclusions that are reasonable, defensible and valid.

27. The ESA relied on NGTL’s experience with past projects, including decades of operating experience on the assets which are proposed to be looped or added to for the Project, the most current scientific understanding of how these types of pipeline projects affect the environment, and NGTL’s proven construction methods and mitigation measures. With the implementation of these mitigation measures, the ESA concluded that adverse residual Project and cumulative environmental and socio-economic effects will be not significant, except for cumulative effects on woodland caribou within the Little Smoky caribou range, which is discussed in more detail below.46

28. General concerns about the effects of the Project on wildlife and wildlife habitat were identified by certain Aboriginal groups. The potential effects of the Project on wildlife and wildlife habitat were thoroughly considered in the ESA. Individual species or species groups were used as key indicators and were selected for the assessment based on their potential interaction with the Project, consideration of traditional importance and use, conservation status of concern, capacity to represent habitat requirements and use of other species, and availability of meaningful, measurable parameters that can be used to estimate potential effects from the Project.47 Taking into consideration the mitigation measures proposed by NGTL, as described in the Environmental Protection Plan (“EPP”), the Project effects on wildlife and wildlife habitat were predicted to be reversible and low to moderate magnitude for all indicators, and the residual effects of the Project on wildlife are predicted to be not significant.48

29. A number of intervenors also raised concerns with regard to the Project’s potential contribution to cumulative effects. To the extent that the Project’s effects will overlap with the effects of existing or reasonably foreseeable future developments, these cumulative effects were thoroughly assessed in the cumulative effects assessment in the ESA. The cumulative effects assessment followed the requirements of CEAA 2012 and guidance from the CEAA Agency, and is consistent with the approach described in the NEB Filing Manual. The ESA concluded that the Project’s contribution to cumulative effects on the environmental and socio-economic elements (aside from woodland caribou, in the Little Smoky caribou range) will be not significant.49

30. Based on NGTL’s in-depth understanding of the current environment in the Project area, its experience constructing and operating pipelines, and the application of field-proven

45 A92619-10, PDF 15.

46 A92619-15, PDF 255.

47 A92619-13, PDF 7.

48 A92619-14, PDF 84-86.

49 A92619-15, PDF 255.








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mitigation measures, the conclusions in the ESA can and should be confidently relied on by the Commission as reasonable and informed predictions of how the Project will likely affect the environment.

NGTL’s approach to woodland caribou mitigation is sound and defensible

31. Potential effects on woodland caribou were specifically identified by Environment and Climate Change Canada (“ECCC”) and several Aboriginal groups as a key issue for the Project.

32. The ESA acknowledged that pre-existing cumulative effects in the Little Smoky caribou range are significant because the range is already beyond the 65% undisturbed habitat threshold identified in the federal Recovery Strategy for the Woodland Caribou (Rangifer tarandus caribou), Boreal Population, in Canada (“Federal Recovery Strategy”) and, therefore, any additional loss of habitat within the range is significant, unless a Caribou Habitat Restoration and Offset Measures Plan (“CHROMP”) is implemented.50 For that reason, NGTL has committed to implementing a Project-specific CHROMP, which contains a variety of strategies for habitat restoration and access management, including outside the Project footprint to offset the residual effects of the Project on caribou habitat.51

33. Contrary to ECCC’s suggestion during the hearing,52 the CHROMP will ensure that the Project does not result in any net loss of caribou habitat.53 NGTL has engaged with both provincial and federal regulators on the content of the CHROMP.54 The CHROMP was specifically designed to align with the Federal Recovery Strategy and Alberta’s woodland caribou policy (which have succeeded in stabilizing the Little Smoky herd in recent years55), and NGTL filed an amended Preliminary CHROMP during the hearing process which reflects ECCC’s advice.56 Further, NGTL’s Preliminary CHROMP specifies that the CHROMP will be informed by lessons learned from recent projects, ongoing monitoring programs, regulatory policy changes and ongoing consultation.57 NGTL’s proposed CHROMP is also consistent with CHROMPs that NGTL has prepared for other

50 A92619-15, PDF 255.

51 The CHROMP considered the Federal Recovery Strategy, the Alberta Draft Provincial Woodland Caribou Range Plan, and the 2019 Amendment to the Federal Recovery Strategy. See A92619-19, PDF 347 and Transcript Vol. 11, para 5121.

52 Transcript Vol. 13, para 7219.

53 A92619-14, PDF 94.

54 A92619-19, PDF 324.


56 C00043-1, PDF 22 and Appendix 3-2.

57 C00043-1, Appendix 3-2, PDF 151.









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CER-regulated projects and that have recently been approved by the NEB,58 thus ensuring consistency among caribou habitat restoration and offset planning across NGTL’s projects.

34. ECCC’s concerns with NGTL’s proposed offset methodology were based on the Initial Offset Value (“IOV”) in NGTL’s Preliminary CHROMP.59 However, the IOV will be less than the actual amount of area NGTL will offset (the Final Offset Value, or “FOV”) and will account for the types of risks and uncertainties ECCC recommends.60 As a result, the Commission should give no weight to ECCC’s suggestion that NGTL is proposing a 0.84:1 or 1:1 “offset ratio” or that the Project will result in a “net loss” of caribou habitat. Both suggestions are factually incorrect.

35. ECCC recommended that the CHROMP should include a 4:1 offset ratio for affected caribou habitat, the same blanket recommendation that ECCC has recently made on several other CER-regulated pipeline projects.61 ECCC did not support its recommendation with any scientific evidence. While the qualitative guidance that ECCC relied on suggests that offset ratios should be developed on a case-by-case basis, having regard to the specific details of the Project62 – an approach that is reflected in NGTL’s Preliminary CHROMP, this guidance is not accounted for in the factors that ECCC considered; those factors are not specific to the details of the Project or the types and locations of planned offsets.63 The only specific support ECCC could provide for using a 4:1 ratio as opposed to another number (such as a 1:1, 2:1, or 10:1 ratio, for example) is a draft policy document in BC that itself includes no rationale for a 4:1 ratio.64 ECCC was only able to identify one example where a 4:1 offset ratio has been applied for caribou – the Akasaba West Copper-Gold Mine Project.65 This is a materially different type of project subject to a separate regulatory regime. To NGTL’s knowledge, no CER-regulated pipeline has ever used this approach.

36. The NEB previously considered and rejected ECCC’s recommendation for a 4:1 offset ratio, finding it inappropriate because it does not consider Project-specific details:

In contrast, the Board notes the detailed analysis NGTL has put into its offset plan to account for a wide variety of mitigation- and habitat-related variables. By prescribing a 4:1 ratio that does not consider any variables or specific risks such

58 C00542-1, PDF 38-40.


60 C00043-1, PDF 26-27 and PDF 150.

61 See, for example, Transcript Vol. 15, paras 8116 and 8118.

62 Transcript Vol. 15, paras 8183 and 8194.

63 A98973-1, PDF 10-11.


65 C00534-1, PDF 5.







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as the inherent value, and the delivery, temporal, and spatial risks associated with different conditions, the Board is concerned that a blanket 4:1 ratio would remove any incentive to avoid new cut, or ensure that the offset measures selected would be effective, or account for the timing of implementation or proximity of offsets. The Board notes, for example, that NGTL’s inherent effect values provide a 5:1 incentive for NGTL to follow existing RoW, which for this Project amounts to 95 per cent of the RoW in caribou ranges. In contrast, a blanket recommendation of a 4 hectare offset for every 1 hectare of critical habitat destroyed regardless of existing conditions on the ground would likely create an incentive to simply take the shortest, most direct route regardless of considering existing disturbances versus creating additional new linear corridors. The Board also notes that while the final overall offset ratio derived from NGTL’s discrepancy risk model multipliers may vary and not always result in a ratio of 4:1, it may sometimes result in ratios greater than 4:1…66

37. During cross-examination, ECCC acknowledged that the ECCC 4:1 offset recommendation does not incent companies to avoid new cut.67

38. NGTL’s approach, unlike ECCC’s, is supported by scientific evidence. Consistent with approaches on past projects that have been accepted by the NEB, NGTL’s proposed restoration and offset valuation method is Project- and site-specific. NGTL uses science-based multipliers to account for delivery, spatial and temporal risks specific to the proposed restoration or offset habitat, the specific measures proposed, as well as an inherent effect multiplier to account for incentives to avoid new cut.68 These multipliers address the types of uncertainties cited by ECCC.69

39. For all of these reasons, NGTL submits that ECCC’s recommended 4:1 offset ratio is arbitrary, unjustified, and inconsistent with past NEB practice. As a result, the Commission should reject ECCC’s approach and accept NGTL’s approach to caribou restoration and offsetting.

Additional Mitigation Plans are Not Required

40. In their written evidence and responses to Information Requests, some of the intervenors requested that NGTL implement additional environmental mitigation plans beyond what NGTL has proposed in its EPP for the Project. However, none of these intervenors filed evidence demonstrating that such plans are warranted or that NGTL’s proposed mitigation measures are inadequate. For example, Blood Tribe and Piikani Nation suggested that an edge management plan should be developed for sections of the Project that pass through

66 NEB Reasons for Decision GH-002-2015, NGTL Application for the 2017 NGTL System Expansion, June, 2016,

p 138. The Board reached a similar conclusion in NEB Letter Decision GHW-001-2018, NGTL 2018 Boundary Lake North Section, July 31, 2018, p 19-20.

67 Transcript Vol. 15, para 8260-8267.

68 C00043-1, PDF 25-30.

69 A98973-1, PDF 10.





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Old Seral Stage Forest70 and Samson Cree Nation (“SCN”) suggested that separate mitigation plans be established for grizzly bear monitoring, cultural heritage resources management, navigation access, traffic management, and access generally.71 No evidence was submitted in support of these requests. NGTL’s ESA and EPP already contain a comprehensive suite of mitigation measures aimed at addressing a multitude of issues, including those raised above.72 Any additional plans would be superfluous and unnecessary.

VIII. Aboriginal Engagement

Legal Framework

41. The Supreme Court of Canada (“SCC”) in Haida Nation v British Columbia (Ministry of Forests)73 stated the basic underlying principle for Aboriginal consultation in Canada; namely, that the honour of the Crown requires that the government consult, and possibly accommodate, the interests of Aboriginal people when contemplating Crown conduct that may infringe on their Aboriginal or treaty rights.

42. The scope of the Crown’s consultation obligation is proportionate to the strength of the asserted right or title, and the seriousness of the impact of the proposed decision on the exercise of rights.74 On the deeper end of the spectrum, the SCC has held that meaningful consultation requires that the Crown (i) provide those claiming the Aboriginal or treaty right an opportunity to make submissions; (ii) permit those claiming a right to formally participate in the decision-making process; and (iii) provide written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision.75

43. The courts have been clear that the duty to consult: (i) belongs to the Crown and not to the proponent, except to the extent the Crown delegates procedural aspects to the proponent; (ii) does not require a project proponent to offer any particular form of accommodation to Aboriginal groups; (iii) does not provide any Aboriginal group with an effective veto over a proposed project; and, (iv) includes a reciprocal onus on Aboriginal groups to carry their end of the consultation, make their concerns known, and to try to reach some mutually satisfactory solution.76 Courts have also held that the Crown’s fiduciary duty to Aboriginal

70 A98937-1, PDF 33 and A98938-1, PDF 32.

71 A99929-1.

72 See, for example, A94156-3.

73 [2004] 3 SCR 511, 2004 SCC 73 at para 25 (“Haida”).

74 Haida, para 39.

75 Haida, para 44.

76 Haida, paras 47-49; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), [2005] 3 SCR 388, 2005 SCC 69 at para 65.







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groups must be balanced against the Crown’s responsibilities to all Canadians and that decision makers should balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims.77

44. In Clyde River (Hamlet) v Petroleum Geo-Services Inc.78 and Chippewas of the Thames First Nation v Enbridge Pipelines Inc.,79 the SCC recently acknowledged that the NEB had the procedural powers to implement consultation and the remedial powers to impose and enforce accommodation measures. The SCC also acknowledged that the NEB had the requisite technical expertise to assess the impacts of proposed projects and determine what accommodation measures may be available.80 These cases acknowledge the Crown’s ability to rely on the NEB’s regulatory assessment process to partially or completely fulfill its duty to consult, but affirm that the ultimate responsibility for ensuring the adequacy of consultation remains with the Crown.81

45. During the hearing, Natural Resources Canada (“NRCan”) confirmed that the Crown has not delegated the procedural aspects of the duty to consult to NGTL or the NEB, and that the legal duty to consult remains with the Crown as per section 35 of the Constitution Act, 1982.82 NRCan also confirmed that the Crown will continue to conduct supplementary consultations after the NEB issues its recommendation report, and that the NEB review process is an effective means of gathering, distributing, and assessing information regarding any adverse impacts the Project may have on potential or established Aboriginal and Treaty rights.83 This position is consistent with recent case law.

NGTL’s Aboriginal Engagement for the Project Has Been Appropriate

46. NGTL submits that its engagement activities have been reasonable and appropriate for the scope and nature of the Project.

47. NGTL began engagement with potentially affected Aboriginal groups about portions of the Project in 2017, and the entirety of the Project in February 2018. Since that time, it has worked closely with each potentially affected Aboriginal group to provide information about the Project, make opportunities available for the group to provide information to

77 Ermineskin Indian Band and Nation v Canada, 2009 SCC 9; Haida, para 18.

78 2017 SCC 40, [2017] 1 SCR 1069 (“Clyde River”).

79 2017 SCC 41, [2017] 1 SCR 1099 (“Chippewas”).

80 See Clyde River, para 33 and Chippewas, para 48.

81 See Clyde River, para 30 and Chippewas, para 34.

82 A99924-1, p 3.

83 A99924-1, p 3.





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NGTL about potential issues and concerns, including through Traditional Knowledge (“TK”) studies, and develop mutually acceptable solutions and benefits.

48. Summaries and logs of NGTL’s engagement to date with potentially affected Aboriginal groups have been placed on the record.84 These summaries demonstrate that NGTL made substantial efforts to provide Aboriginal groups with opportunities to participate in the planning of the Project and identify possible concerns. NGTL has also committed to continuing its engagement with Aboriginal groups throughout the life of the Project.85

49. NGTL notes that Gift Lake Métis Settlement (“Gift Lake”) submitted an application to participate in the hearing on July 29, 2019, approximately two weeks before the start of the oral hearing.86 Gift Lake was not identified by NGTL as being potentially affected by the Project because NGTL is not aware of any use of the Project area by Gift Lake.87 At the hearing, NRCan similarly stated that it also did not identify Gift Lake as being potentially affected by the Project.88 Notwithstanding this, during cross-examination, NGTL committed to engaging with Gift Lake going forward to share information and discuss any questions or concerns that Gift Lake may have with the Project.89

NGTL is not Required to Assess Impacts on Section 35 Rights

50. Throughout the hearing, several Aboriginal group intervenors challenged the sufficiency of NGTL’s Application and ESA on the basis that NGTL did not conduct an analysis of Project impacts on Section 35 rights.90 However, neither the case law nor the NEB Filing Manual require proponents to conduct such an analysis. Under the current legal and regulatory regime, project proponents are expected to assess the impacts of their project on the environment and land users, including members of Aboriginal groups who may exercise Section 35 rights in the vicinity of the project. Project proponents are well positioned to conduct such an assessment because they understand the details of their project and how the project might affect the surrounding environment and communities. Project proponents are not well positioned, however, to analyze the scope and nature of each potentially affected Aboriginal group’s Aboriginal and Treaty rights. That type of

84 See, for example, A92619-1, A94156-1, A96812-11,

85 Transcript Vol 10, para 4626.

86 C00747-1.


88 A99924-7 and Transcript Vol. 13, paras 6763-6764.


90 For example, A94960-1, PDF 2, A94948-1, PDF 1.










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analysis is better suited for the Crown or the Aboriginal group itself.91 To that end, NGTL notes that courts have stressed that Aboriginal groups have an obligation to identify how their rights may be affected by a project.92

51. NGTL complied with all applicable legal requirements. As discussed further below, NGTL prepared an assessment of the Project’s likely effects on TLRU in accordance with the Filing Manual, and in doing so considered biophysical components as well as other indicators such as availability of access to sites and resources.93 Further, NGTL and its environmental consultants, Wood Environment & Infrastructure Solutions (“Wood”), reviewed and incorporated, where appropriate, all information made available to NGTL through its Aboriginal Engagement Program.94 Several Aboriginal groups also filed information about potential effects on TLRU and their Section 35 rights directly with the Commission. NGTL expects that the Commission will take into account all information on the hearing record in assessing the effects of the Project and how Section 35 rights may be impacted by the Project.

IX. The Project Will Not Have Significant Adverse Effects on TLRU

Impacts to TLRU were Fully Considered in the ESA and Project Planning

52. Several of the Aboriginal group intervenors in the hearing expressed concerns about how the Project would affect their TLRU activities. NGTL assessed potential effects of the Project on TLRU in the ESA and concluded that, with the exception of localized effects in small areas during short periods of active construction, the Project area (including the Project footprint) will remain available for TLRU activities during construction and operations.95 In addition, NGTL has developed a comprehensive suite of mitigation measures to reduce the adverse effects of the Project on the environment and on the use of those lands and resources by Aboriginal groups. These mitigation measures include providing potentially affected Aboriginal groups with the Project construction schedule and maps so that potential conflicts between the short period of Project construction and TLRU activities can be reasonably avoided or minimized.96 With implementation of NGTL’s proposed mitigation measures, the ESA concluded that the residual effects of

91 NGTL notes that in Procedural Update 1, the Board indicated that its assessment of Aboriginal and Treaty rights,

and the potential impacts of the Project on those rights, is dealt with in the Board’s analysis and determinations (A97991-1, PDF 5).

92 O’Chiese First Nation v Alberta Energy Regulator, 2015 ABCA 348, paras 42-44 and Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), [2005] 3 SCR 388, 2005 SCC 69 at para 65.

93 Transcript Vol. 11, paras 4766-4767 and paras 4769-4770. See also A98233-11, PDF 68-69 and A92619-15.

94 See, for example, A92619-15, PDF 56, A92619-19, Appendix K, A98233-11, PDF 68-69 and Transcript Vol. 11, paras 4766-4767 and paras 4769-4770.

95 C00043-1, PDF 16.

96 See, for example, A92619-15, PDF 81-86.











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TLRU activities will be localized, short to medium term, reversible, and therefore not significant.97

53. While some Aboriginal groups expressed concerns that the ESA was filed before they provided NGTL with details of their TLRU in the Project area, NGTL used the best information available at the time, including Project-specific information provided by Aboriginal groups, as well as through a comprehensive literature review, desktop analysis, publicly available reports and NGTL’s operating experience.98 In addition, NGTL’s consultant, Wood, did not assume that the lack of specific TLRU information about use of a particular area meant there was no use of the land or resources in the area; rather, Wood assumed that the entire LSA is used for TLRU activities and assessed potential impacts of the Project on TLRU on that basis.99

54. When new information (e.g., TK studies, concerns and recommendations) was provided to NGTL after the ESA was completed, through the hearing process or otherwise, NGTL and Wood reviewed the information to determine whether it identified potential adverse effects that were not assessed in the ESA, if any new mitigation was required, and whether the results changed the conclusions of the ESA.100 Generally, the information confirmed the assumption in the ESA of general use of the Project area for hunting, fishing, trapping, plant harvesting, habitation, spiritual or cultural sites.101 In some cases, however, specific TLRU sites were identified that warranted additional, site-specific mitigation beyond what is contained in the EPP (e.g., avoidance through micro-routing or relocation of temporary workspace).102 Ms. Dunn confirmed that NGTL has already modified the Project design to accommodate some of these types of sites, and discussions are ongoing for others.103

55. In some cases, groups declined to provide specific information about TLRU sites, despite requests for such information by NGTL.104 Several intervenors justified withholding

97 A92619-15, PDF 88.

98 A92619-15, PDF 56-59 and Transcript Vol. 11, paras 4766-4767 and paras 4769-4770.

99 A92619-15, PDF 59, 61-62 and 64 and Transcript Vol. 10, paras 3925-3926.

100 A92619-15, PDF 56 and Transcript Vol. 10 paras 3917-3918 and 4110-4111 and Transcript Vol. 11, paras 4910-4911.

101 See, for example, C00043-1, PDF 10, Transcript Vol. 10 paras 3918, 4126, 4665-4669 and Transcript Vol. 11, para 4911.



104 NGTL submitted IRs to Intervenors in this proceeding requesting information from those groups about site-specific use and several groups declined to provide such information. For example, Stoney Nakoda Nations’ responses to NGTL’s IRs (A99931-1, A99934-1, A99935-1) did not provide the requested information, nor did Horse Lake First Nation (A99930-2) or O’Chiese First Nation (A99938-2). Additionally, Duncan’s First Nation did not provide a response to NGTL IR 1.2 or 1.3; Ermineskin Cree Nation objected to the request made by NGTL to provide site-specific information and did not provide that information; and SCN did not provide a response to













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information on the basis of an incorrect perception that NGTL limited its TLRU assessment to site-specific considerations.105 As Ms. Dunn and Ms. Powell made clear during the hearing, NGTL considered all information provided by communities and reviewed that information against the assumptions and findings of the ESA to ensure that there were no potential effects missed and that the underlying assumptions in the ESA were accurate.106 The issue of “site specific” information arises in the context of mitigation. For general TLRU activities such as hunting and gathering in the Project area, NGTL’s established suite of mitigation measures in the EPP will avoid or minimize potential effects to those activities.107 However, NGTL also considers implementing additional mitigation in specific, localized areas if warranted based on site-specific concerns raised by Aboriginal groups.108 For example, if groups identify a particular berry patch or a site used for cultural ceremonies, NGTL can evaluate whether there are ways to avoid or otherwise manage effects on those sites through site-specific mitigation that is not currently set out in the EPP.109 NGTL’s process for mitigating potential effects is not intended to diminish the importance of non-site specific input provided by Aboriginal groups, but rather to ensure that NGTL is taking all reasonable steps to avoid, minimize or otherwise address potential impacts on TLRU.

56. NGTL has committed to continue to review and consider additional traditional knowledge as it is made available, and will continue to document and address traditional knowledge and related concerns identified by Aboriginal groups through the Project’s ongoing Aboriginal Engagement Program.110 In NGTL’s view, it is unlikely that previously unidentified TLRU sites will be identified since the proposed pipeline routes parallel existing linear disturbances for the majority of their length.111 However, NGTL has planned for such scenarios – if previously unidentified cultural, heritage or TLRU sites are

NGTL’s IRs and instead submitted what was in effect a supplementary evidence submission discussing additional mitigation measures that NGTL should be required to implement (see A99929-1).

105 See, for example, Stoney Nakoda Nations’ responses to NGTL’s IRs (A99931-1, A99934-1, A99935-1), Horse Lake First Nation responses to NGTL’s IRs (A99930-2) and O’Chiese First Nation responses to NGTL’s IRs (A99938-2).

106 A92619-15, PDF 56 and Transcript Vol. 10 paras 3917-3918 and 4110-4111 and Transcript Vol. 11, paras 4910-4911.

107 A94156-3 and Transcript Vol. 12, paras 6062-6067.

108 Transcript Vol. 10, para 4109-4111.


110 A92619-15, PDF 56.

111 A96812-1, PDF 35.













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discovered during construction, NGTL has proposed a Cultural Resource Discovery Contingency Plan to avoid or minimize potential effects on those sites.112

Intervenor Consultant Reports are Unreliable and Inherently Flawed

57. Most of the consultant reports filed by intervenors during the hearing identify potential Project interactions or provide conclusions about Project effects that differ from the conclusions in the ESA. For the following reasons, the Commission should give no weight to such conclusions.

MNP Reports

58. MNP LLP (“MNP”) prepared reports on behalf of ANSN, Horse Lake First Nation (“HLFN”), O’Chiese First Nation (“OCFN”) and the Stoney Nakoda Nations, comprised of Chiniki First Nation, Bearspaw First Nation and Wesley First Nation (collectively, “SNN”). The focus of each of the MNP reports was on quantifying the amount of land that would be converted from “available” to “unavailable” for the exercise of Section 35 rights, based on the incorrect assumption that pipeline ROWs are unavailable for the exercise of Section 35 rights. MNP assumed that Section 35 rights cannot be exercised on any lands within the “White Area” in Alberta and all lands in the “Green Area” where Crown dispositions exist.113 However, MNP acknowledged that Section 35 rights can be exercised on private lands with the permission of the landowner,114 and NGTL’s evidence is that Crown dispositions such as pipeline ROWs remain available for use, except for short periods during active construction.115

59. The MNP reports also quantified areas of avoidance by traditional land users around industrial features, based on community members’ “preferred conditions” for land use, not actual avoidance.116 MNP’s reports were based on interviewing a small group of community members from each of its clients to understand their “preferences” about conducting TLRU activities on the lands. These survey participants were not randomly selected, they were preferentially selected by MNP, and Ms. Campbell agreed they were not representative of the community as a whole.117 Not surprisingly, these survey participants identified that they “prefer” areas with no other people, that are quiet and that are free from any signs of human activity. However, that does not mean that they have an Aboriginal or Treaty right to exercise rights in those “preferred” conditions. Further, just because some community members claim that they “prefer” to avoid areas with features

112 A99941-1, PDF 182.

113 See, for example, A98975-2, PDF 21 and 24.


115 C00043-1, PDF 16.

116 See, for example, A98975-2, PDF 60-62.








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like pipeline ROWs, the evidence is clear that, in practice, many Aboriginal land users do not avoid these features; they continue to use them. For example, roughly half of the survey participants from OCFN noted that they did not avoid hunting in areas with seismic lines, power lines and pipeline ROWs.118 Additionally, most Aboriginal group intervenors identified that TLRU activities currently occur throughout the Project area, including along the existing GPML ROW.119 This inherent inconsistency in the MNP reports means that the Commission should give no weight to the sections of the MNP reports asserting that the Project will result in lands becoming “unavailable” or avoided for TLRU activities.

60. The conclusions in MNP’s reports are also inherently flawed because they relied on NGTL’s biophysical assessments, but assumed that the list of potential effects identified in the ESA represented NGTL’s conclusions of the Project’s residual effects.120 The ESA demonstrates that those potential effects will be avoided or reduced through the implementation of NGTL’s proposed mitigation measures.121 MNP also assumed that the maximum effects during active construction, which NGTL’s witnesses explained would last for a few weeks to at most a few months in select locations,122 would continue throughout the life of the Project.123 These assumptions are unreasonable and do not allow for an informed assessment of Project effects. The consultant who testified to MNP’s work, Ms. Campbell, acknowledged during the hearing that these assumptions resulted in an “overestimation of impact”.124

61. Finally, while MNP claimed to present “specific” avoidance and mitigation measures for the Project, MNP’s recommendations consisted of vague suggestions such as “constructing and operating the Project in a way that doesn’t physically affect the land”.125 MNP did not consider whether those measures were feasible, or how they could be achieved.126 Additionally, for residual impacts, MNP recommended that its clients be provided financial compensation,127 which is beyond the scope of the Regulator’s jurisdiction in this

118 A98978-1, PDF 53.

119 See, for example, A98976-1, PDF 5, A98968-1, PDF 5, A98962-1, PDF 5, A98975-1, PDF 6, A98954-1, PDF 4, A98978-1, PDF 16-18.

120 Transcript Vol. 16, paras 8721-8722, 8746, 8752, 8754 and 8762.

121 A92619-15, PDF 88.




125 Transcript Vol. 16, para 8815


127 A98975-4, PDF 33.












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proceeding.128 As a result, the CER should give little to no weight to MNP’s recommendations.

SVS Reports

62. Shared Value Solutions (“SVS”) prepared reports on behalf of Blood Tribe, the Métis Nation of Alberta – Region 3, Piikani Nation, Driftpile Cree Nation and Saddle Lake Cree Nation. Each of these reports summarized the ESA and made general recommendations for additional studies and mitigation measures.

63. During cross-examination, Ms. Speiran confirmed that SVS did not conduct an independent assessment of the Project’s effects.129 SVS simply reviewed portions of NGTL’s evidence and provided recommendations based on that evidence.130 Ms. Speiran also confirmed that SVS did not review large portions of NGTL’s evidence, including the Additional Written Evidence (“AWE”) (which included an ESA Supplemental filing) and NGTL’s responses to Information Requests, prior to making its recommendations.131 In many cases, NGTL’s AWE and responses to Information Requests expressly addressed the substance of SVS’s recommendations.132 As a result, the Commission should give little to no weight to the SVS reports and recommendations.

Firelight Report

64. Firelight on behalf of SCN conducted a critique of NGTL’s cumulative effects assessment methodology and recommended alternative ESA methods (e.g., pre-development baselines) that are inconsistent with the Filing Manual requirements and past ESA’s that have been accepted by the NEB.133 Firelight did not adopt its report during the hearing and NGTL had no opportunity to test it through cross-examination.134 As a result, the Commission should give no weight to Firelight’s report.

Oak Road Concepts Report

65. Oak Road Concepts Inc. authored a report that purported to assess Whitefish Lake First Nation #128 (Goodfish) (“WLFN”) traditional land use in relation to the Project.135 During

128 See, for example, NEB Letter Decision on the West Path Delivery Project, April 11, 2019, p 21.



131 Transcript Vol. 16, para 8981 and 8987.

132 See, for example, A99941-1 and A96812-1 through 15.

133 A98979-2, PDF 14.


135 A98958-2.







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cross examination, Mr. O’Connor confirmed that the predictions about Project effects in the report did not consider the mitigation measures in the ESA and EPP.136 Mr. O’Connor also confirmed that he did not review ESA sections discussing wildlife and species at risk.137 As a result, the Commission should give no weight to the predictions contained in this report.

Willow Springs Report

66. Ermineskin Cree Nation (“ECN”) filed an Indigenous Knowledge and Use (“IKU”) report (“IKU Report”).138 However, ECN did not present its consultant, Dr. Timothy Clark of Willow Springs Strategic Solutions Inc. as a witness in the oral hearing, and the witness who did attend for ECN, Mr. Bellerose, could not speak to the methodology and maps contained in the IKU Report.139 As a result, NGTL was unable to test the assumptions, methodologies and mapping contained in the IKU Report via cross-examination, and the Commission should consequently give no weight to the recommendations contained therein.

Cadotte Lake Métis and Duncan’s First Nation

67. Cadotte Lake Métis (“Cadotte”) and Duncan’s First Nation (“DFN”) filed written evidence in this proceeding, but both groups filed correspondence withdrawing from the hearing.140 As a result, neither Cadotte nor DFN put forward a witness panel to adopt their written evidence, and NGTL had no opportunity to test their evidence through cross-examination. The Commission should therefore give no weight to the evidence filed by Cadotte or DFN.

Summary

68. Overall, the evidence is clear that Aboriginal groups continue to use the Project ROW for hunting and other TLRU activities. Most of the TLRU reports filed by Aboriginal groups indicate current use of the existing corridor for TLRU activities. This current use of the EDML and GPML ROW is consistent with the conclusions in the ESA that the Project area, including the new ROW, will remain available for TLRU activities with the exception of localized areas during the short periods of active construction.141

136 Transcript Vol. 18, para 9654 and 9666.


138 A98959-2.


140 C01111-1 and C01110-1.

141 C00043-1, PDF 16.







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Community-Specific TLRU Studies are Not Required

69. Some Aboriginal groups challenged the adequacy of the TLRU assessment in the ESA because it did not include community-specific assessments. Nowhere in CEAA 2012 or the Filing Manual is there a requirement to conduct community-specific assessments, and the preparation of Project-specific as opposed to community-specific assessments for TLRU is consistent with past practice for recently-approved NEB-regulated projects.142 Further, as noted above, the ESA conservatively assumed that TLRU harvesting sites, areas, and activities have the potential to occur throughout the Project area and that traditionally used species identified as being present within the Project’s Regional Study Area (“RSA”) could be hunted, fished, trapped, or gathered by Aboriginal groups, even if specific information identifying specific activities, species, or sites had not been received from Aboriginal groups.143 Where specific information was provided by Aboriginal groups, NGTL considered this information in the ESA and, where appropriate, for incorporation into Project planning.144 As a result, to the extent an Aboriginal group expressed concerns that were unique to their group, that information was considered in the context of the ESA.

70. For these reasons, NGTL submits that its TLRU assessment for the Project is appropriate and provides sufficient information for the Commission to determine the likely effects of the Project on TLRU.

X. Indigenous Monitoring and Working Groups

Indigenous Advisory Monitoring Committee is Not Warranted

71. A number of Aboriginal groups, including SNN and Blood Tribe, suggested in their hearing submissions that an Indigenous Advisory Monitoring Committee (“IAMC”) similar to the one established for the Trans Mountain Expansion Project or Enbridge Line 3 should be created for this Project. NGTL disagrees with an IAMC for the Project for several reasons:

• First, the scope and scale of the Trans Mountain Expansion Project (and Enbridge Line 3) are different than the Project’s and their potential impacts on Aboriginal groups are materially different from this Project.145 For example, the Trans Mountain Expansion Project was approved subject to 157 conditions, many of which were unique to that project. In contrast, the NEB proposed 33

142 See, for example, the North Montney Project (GH-001-2014), 2017 NGTL System Expansion Project (GH-002-

2015), West Path Delivery Project (GH-002-2018), Trans Mountain Expansion Project (OH-001-2014), Towerbirch Expansion Project (GH-003-2015) and Northern Gateway Project (OH-4-2011).

143 See, for example, A92619-15, PDF 59, 61-62 and 64 and Transcript Vol. 10, paras 3925-3926

144 A92619-15, PDF 56 and A92619-19, PDF 436.

145 C00043-1, PDF 13.







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potential conditions for the section 52 portion of this Project,146 many of which are standard conditions for NGTL projects.

• Second, establishing parallel oversight responsibilities would duplicate efforts, create regulatory uncertainty regarding monitoring obligations and condition compliance, and could frustrate the Regulator’s ability to regulate implementation of the Project in an orderly and efficient manner. NGTL submits that IAMC’s should be reserved for exceptional projects, like the Trans Mountain Expansion Project and Enbridge Line 3. If an IAMC is required for the Project, NGTL is concerned that most NEB-regulated projects will require similar conditions. Such conditions would create significant regulatory burden for proponents, the Regulator and Aboriginal groups that, in NGTL’s view, is disproportionate to the benefits any such committee would have.

• Third, the establishment of an IAMC based on the evidence filed in this proceeding (which does not include important details on how the IAMC would be structured, its functions, and its decision-making process) would create uncertainty on important issues such as whether some/all groups would have the ability to refuse a condition compliance filing, what would happen if the Aboriginal groups do not agree amongst themselves regarding condition compliance filings or the conditions themselves, or what would happen in the event of a conflict between the committee and the Regulator. Despite questions from NGTL regarding the establishment of an IAMC for this Project, intervenors were unable to provide answers to these key issues.147

72. NGTL further submits that the objective of an IAMC will be met through NGTL’s Aboriginal Engagement Program and its proposed monitoring plans. For example, the goal of NGTL’s Aboriginal Engagement Program for the Project is to provide Project information and seek feedback from Aboriginal groups in order to anticipate, prevent, mitigate and manage situations that have the potential to affect Aboriginal groups.148 NGTL will also be developing an Aboriginal Construction Participation Program (“ACPP”), which will provide employment opportunities for individuals from participating Aboriginal groups to monitor construction activities and report back to their communities.149 The ACPP will be informed by results of the biophysical field programs for the Project, engagement with Aboriginal groups, and feedback obtained.150 NGTL will also implement post-construction monitoring to assess the success of its mitigation measures and guide the implementation of any corrective actions, and these plans will be

146 C00757-1, C00757-2 and C00757-3.

147 See, for example, Bearspaw First Nation response to NGTL IR 1.1, A99931-1, PDF 3.

148 A92619-1, PDF 47.

149 A99941-1, PDF 218.

150 A98233-9, PDF 116-119.










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informed by the results of NGTL’s Aboriginal engagement activities. Collectively, these plans and programs will allow Aboriginal groups to provide input into NGTL’s Project plans in a manner that is consistent with the nature and scope of the Project.

73. Finally, NGTL notes that Blood Tribe suggested that an IAMC should be created for the entire NGTL System, which is a matter that extends beyond the Commission’s jurisdiction in this hearing.151 The NEB’s jurisdiction in this hearing is limited to making a decision on the Application based on the evidence before it – the Commission does not have jurisdiction or evidence to impose new monitoring and oversight requirements on the entire NGTL System through this hearing.

Indigenous Working Group for Caribou is Unnecessary, Duplicative and Impractical

74. Several Aboriginal groups also recommended an Indigenous Working Group (“IWG”) to oversee the implementation of the CHROMP and caribou management planning in general.152 This suggestion is impractical for the Project and unnecessary in light of the work that Alberta and the federal government are already planning to implement.153

75. As proposed in the evidence of the intervenors in this proceeding,154 an IWG would include participation of two members for each Indigenous group affected by the Project (i.e., over 100 people, not including any representatives from NGTL or government). In NGTL’s view, such a large working group may be well suited for broader policy development (such as what Alberta and the federal government are contemplating for caribou range planning), but it would be practically difficult if not impossible to organize in the context of a single project in a manner that is both efficient and effective.

76. NGTL has already committed to engaging with potentially affected Aboriginal groups on the Final CHROMP.155 The intervenors have not demonstrated that NGTL’s commitments around engagement on the CHROMP are inadequate such that an IWG is necessary for the Project. Alberta and the federal government are also planning to establish working groups156 for the Little Smoky herd in 2020-2021, the results of which would influence the content of the Final CHROMP. In NGTL’s view, adding an IWG requirement for the Project in these circumstances is unnecessary, duplicative and impractical.

151 A99894-2, PDF 3.

152 NGTL notes that while several Aboriginal groups recommended IWGs for caribou, that recommendation was developed by a single consultant, SVS, not the communities themselves. See Transcript Vol. 16, para 9098 and 9100.


154 See, for example, A99894-2, PDF 1-2; A99928-1, PDF 1; A99893-1, PDF 1; A99911-1, PDF 1-2; A99920-2, PDF 1.

155 Transcript Vol. 11, paras 5093, 5095-5096 and 5098.










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XI. Other Matters

Priority of Access under Public Lands Act Dispositions

77. A number of the Aboriginal group intervenors raised concerns with the “priority of access” under NGTL’s Public Lands Act dispositions. For example, in Horse Lake First Nation’s (“HLFN”) written evidence, it states: “The application of the Public Lands Act157 conveys an interest to a third-party disposition holder, in this case NGTL, priority access and can restrict or limit HLFN access to the Project Footprint during construction and operations.”158 HLFN also suggested that HLFN members should be ensured “priority rights to exercise their Section 35 Rights on the land under the disposition sought for the Project…”159

78. The Public Lands Act is provincial legislation enforced by the Alberta government. As a result, the Commission does not have jurisdiction to ensure that “priority rights” are ensured under Public Lands Act dispositions. Regardless, NGTL confirmed that the ROW will remain available for use during construction and operation of the Project, save for short periods during active construction, and Aboriginal members’ right of access will remain unchanged by the pipeline ROW.160 As a result, NGTL cannot restrict or limit access to Aboriginal land users except in localized areas during the short periods of active construction.

Ability to Use the ROW is Not Restricted

79. A number of Aboriginal groups similarly raised concerns regarding a potential lack of ability to use the ROW during construction and operation of the Project. However, consistent with interpretation of case law and recent regulatory decisions, NGTL has confirmed that it will not restrict access to this area unless there is interference with the use of the pipeline/facilities. Indeed, persons exercising hunting and fishing rights under treaty and Article 12 of the Natural Resources Transfer Agreement161 in Alberta may access Crown lands where there is no “visible, incompatible use”.162 NGTL submits that a pipeline ROW is not a “visible, incompatible use” with TLRU activities and, in fact, TLRU activities are often carried out along ROWs. NGTL’s evidence is that the only activities that would not be permitted within the ROW during operations would be ones that could

157 RSA 2000, c P-40.

158 A98954-1, PDF 41 and 57. See also A98975-2, p 32.

159 A98954-1, PDF 57.

160 See, for example, C00043-1, PDF 16 and C00514-4, PDF 4.

161 Article 12 of the NRTA guarantees First Nations rights to hunt and fish for food “on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access” (Link).

162 See R. v Badger, [1996] 1 SCR 771 at paras 54 and 65.






https://open.alberta.ca/publications/natural-resources-transfer-agreement



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pose a safety risk.163 During cross-examination, NGTL’s witnesses confirmed that almost all TLRU activities identified by Aboriginal groups could occur on the ROW during operations, including building campfires and temporary or permanent structures along the pipeline ROW, provided there are no excavations exceeding a depth of 30 cm.164

80. The applicability of the Petty Trespass Act165 was raised as a concern by some intervenors. In particular, ANSN requested clarification as to how reclamation activities proposed by NGTL in the EPP will mitigate the “change in legal restrictions (under the Public Lands Act and the Petty Trespass Act).”166 NGTL submits that this legislation does not apply to the pipeline ROW. The Alberta Energy Regulator recently considered these same arguments and confirmed that a pipeline ROW does not give a company the right to restrict access unless that access interferes with the use for which the ROW was granted.167 That interpretation is consistent with NGTL’s evidence in this proceeding and the interpretation provided in R. v Badger regarding visible, incompatible use. As a result, NGTL submits these concerns should be disregarded by the Commission.

Crown Offsets are Not Required

81. Some Aboriginal groups recommended in their hearing submissions that NGTL offset Crown land to be used for the Project, similar to the Manitoba-Minnesota Transmission Line (“MMTL”) Project. This recommendation is not supported by evidence and should not be imposed on the Project. With regard to the MMTL, that project is located in an entirely different area (Southern Manitoba) with different geography and history than the Project. Unlike the Project, the MMTL is a high-voltage, above ground transmission line that will result in a permanent footprint on the land. The Project will result in minimal new permanent footprint on Crown land168 and the remainder of the Project footprint will be available for TLRU activities. In NGTL’s view, such limited reduction in Crown land within the RSA does not warrant Crown land offsets.

82. In addition, the NEB recently turned its mind to the issue of potential offset or land compensation for Crown lands on a separate NGTL project, and concluded that provincial Crown land disposition decisions rest with the Province of Alberta:

163 A98233-14, PDF 19.

164 Transcript Vol. 11, paras 4833, 4835, and 4837.

165 RSA 2000, c P-11. Section 2(1) of the Petty Trespass Act provides that entering onto land in when entry is prohibited under section 2.1, without permission of the owner or occupier, is an offense.

166 See, for example, A98435-1, PDF 16.

167 2017 ABAER 2, Shell Canada Limited Application for Two Pipeline Licences and an Application for a Pipeline Agreement, Ferrier Field, February 1, 2017, paras 136-137 and 139.

168 As indicated in NGTL’s AWE, NGTL has applied for the January Creek Control Valve Site, an above-ground facility, with a footprint of approximately 50m x 80m, (A96812-1, PDF 24) and the addition of 3 additional compressor units at existing compressor stations (A92619-1, PDF 164-166).







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With respect to potential offset or land compensation for Crown lands used for the Project as recommended by the SNN, the Board is of the view that imposing such a condition on NGTL would not be appropriate for this Project. Provincial Crown land disposition decisions, including responsibility for issuing any potential easements in respect of the use of Crown land for the Project, and executing any Crown duties it may have as part of its decision to release any Crown lands for the Project, rest with the Province of Alberta.169

83. Public Lands Act dispositions are controlled by the provincial government and the Commission has no jurisdiction to order the release of any Crown lands for offsets, or otherwise. As a result, NGTL submits that the Commission should similarly conclude that such a condition would not be appropriate to impose on the Project.

Upstream GHG Assessment is Not Required

84. During their hearing submissions, some parties suggested that NGTL should have conducted an assessment of upstream greenhouse gas (“GHG”) emissions resulting from “induced” natural gas development associated with the Project. NGTL responded to that request in its response to SCN’s application for review of the NEB’s determination of the List of Issues, as well as its response to ECCC Information Request 3.170 In those responses, NGTL explained that while it assessed Project-related GHG emissions in section 14 of the ESA, upstream natural gas developments (including mitigation measures for such developments) are regulated by provincial regulatory authorities, not the Regulator, and NGTL has limited knowledge of those developments. As a result, NGTL did not assess GHG emissions associated with upstream natural gas development in the ESA but it committed to work with ECCC outside the hearing process to assist ECCC in estimating upstream GHG emissions, consistent with the ECCC’s approach to past NEB-regulated projects under the Interim Measures for Major Project Reviews.171 NGTL submits that this approach is reasonable in the circumstances, and NGTL continues to rely on its previous arguments172 for why an upstream GHG assessment is neither required nor warranted for the Project.

85. NGTL further notes that while the NEB ruled parties were not prevented from tendering their own evidence regarding GHGs,173 no intervenors filed evidence about Project-related or upstream GHGs.

169 NEB Letter Decision, Application for the McLeod River North Project (Project) under section 58 of the NEB Act,

April 25, 2019, p 7.

170 A99299-1 and C00514-3.

171 C00514-3, p 3.

172 A99299-1 and C00514-3.

173 C00854-1, p 9.









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XII. Comments on Additional Potential Conditions

86. See attached Appendix “A” for NGTL’s comments on the Board’s additional potential conditions dated July 30, 2019.174

XIII. Conclusion

87. The extensive evidentiary record demonstrates that this Project is urgently needed to transport gas from the growing supply in the PRPA to meet increasing market demand on the east side of the NGTL System and at the EGAT. NGTL’s incremental and existing contracts as well as its long-term supply and demand forecasts demonstrate that the Project facilities will be used and useful throughout the economic life of the Project. None of this evidence has been challenged.

88. The Project is economically viable, and its route, facilities and construction methods have been carefully chosen. Most of the Project will be located parallel to existing disturbances, thereby minimizing impacts on the environment, landowners and Aboriginal groups. The Project will not result in any significant adverse environmental effects except for cumulative effects to woodland caribou within the Little Smoky caribou range. The pre-existing cumulative effects on the Little Smoky caribou range are already significant and, therefore, NGTL has committed to implementing a CHROMP consistent with NEB-approved methodologies to restore and fully offset the Project’s effects to caribou and habitat.

89. While several intervenors challenged NGTL’s ESA methodology, NGTL’s approach to assessing effects for the Project complied with the NEB Filing Manual and applicable regulatory guidance, and followed established and accepted industry practices and standards. NGTL’s assessment provides the Commission with sufficient and appropriate information from which to draw informed conclusions about the likely effects of the Project on the environment and on the use of lands and resources for traditional purposes by potentially affected Aboriginal groups. Based on NGTL’s evidence, the Commission can and should confidently conclude that NGTL has appropriately considered and addressed the potential environmental and socio-economic effects of the Project, including on TLRU.

90. For the above reasons, NGTL submits that the Project is in the public interest and that the Commission should approve the application as applied-for. Specifically, NGTL requests that the Commission grant:

(a) a report recommending the issuance of a CPCN, pursuant to section 52 of the NEB Act, authorizing construction and operation of the Project;

174 C00757-1, C00757-2 and C00757-3.




NOV A Gas Transmission Ltd. Final Argument Hearing Order GH-003-2018

October 31, 2019 Page 29 of29

(b) an exemption from the requirements of sections 30(1)(b) and 47(1) of the NEB Act to obtain leave to open from the Regulator before installing certain tie-ins for the Project;

(c) an exemption from the 100% Non-Destructive Examination requirement in section 17 of the National Energy Board Onshore Pipeline Regulations pursuant to subsections 48(2.1) and 48(2.2) of the NEB Act for certain low-pressure piping systems associated with the Project; ·

(d) an order, pursuant to section 58 of the NEB Act, exempti°ng NGTL from the requirements of subsections 31(c), 3l(d) and 33 of the NEB Act in relation to: (i) temporary infrastructure required for construction of the pipeline; (ii) ROW preparation activities (including clearing, grading, and stripping) and commencing trenchless crossings in select areas along the proposed route (in aggregate not exceeding 40 km in length); and (iii) the three compressor station unit additions proposed in the Application;

( e) an order pursuant to Part IV of the NEB Act affirming that: (i) prudently incurred costs required to provide service on the applied-for facilities will be included in the determination of the NGTL System revenue requirement, and (ii) the tolls for services on the applied-for facilities will be calculated using the same methodology used to calculate tolls for services on the NGTL System, as determined through CER order from time to time; and

(f) such further and other relief as NGTL might request or the Commission considers appropriate.

91. Given the urgent nature of the Project, NGTL respectfully requests a decision from the Commission as soon as possible to allow NGTL to meet its contractual in-service date for the Project.

Respectfully submitted,

October 31, 2019

~ ~<~;;;:•~=--------Sander Duncanson Osler, Hoskin & Harcourt LLP Counsel for NOV A Gas Transmission Ltd.

cc: GH-003-2018 Intervenors

LEGAL_CAL: 14274583.10

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