Last year, we surveyed the time that it took to conduct and complete major energy project reviews in Canada, both at the federal and provincial levels (the Project Survey), for a presentation that we made to the Canadian Energy Law Foundation in June 2016,. [1]

We found that major energy project reviews at the federal level took materially longer and that the time for completing the review process was less predictable than at the provincial level. [2]

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 contrasts are pronounced enough that they should be of some interest to the federal government as it conducts the overhaul of its project review process that is currently underway.

The federal timelines for reviewing the various major energy projects included in our Project Survey were as follows:

Project

Project Category

Federal Timeline (months)

Northern Gateway

Pipeline

104

Mackenzie Gas

Pipeline

77

Jackpine Expansion

Oil Sands

77

Joslyn North Mine

Oil Sands

70

Darlington New Nuclear

Generation

68

Muskrat Falls

Generation

64

Labrador-Island Link

Transmission

57

Energy East

Pipeline

54 [3]

Trans-Mountain Expansion

Pipeline

43 [3]

Pacific NW LNG

LNG

42 [3]

Site C

Generation

41

Darlington Refurbishment

Generation

36

Keeyask Hydro

Generation

35

Maritime Link

Transmission

19

The timelines for reviewing these projects varied between 19 to 104 months. The average duration of these federal project reviews was just over 56 months.

The BC timelines for reviewing major energy projects included in our Project Survey were as follows:

Project

Project Category

BC Timeline (months)

Woodfibre

LNG

28

LNG Canada

LNG

27

Westcoast Connector

Pipeline

24

Mica 5 + 6

Generation

24

Coastal Gaslink

Pipeline

22

PRGT

Pipeline

17

The time that it took to conduct these project reviews ranged from 17 to 28 months, compared to the time for conducting the federal project reviews that we surveyed which ranged from 19 to 104 months. The average duration of the BC project reviews was just under 24 months compared to an average of 56 months for federal project reviews.

A comparison of the underlying public record of the federal and the BC-led project reviews reveals some key distinctions.

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 resulted in a relatively less predictable project review process.[4]

Moreover, Review Panels and the NEB tend to conduct their project review process in a quasi-judicial fashion – replete with formal public hearings, oral testimony, often permitting 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. The Expert Panel on Modernization of the NEB noted that the NEB's traditional quasi-judicial process was found by many participants to be overly rigid and legalistic and not even all that functional in allowing meaningful public engagement and consultation. [5]

In contrast, the province of BC conducts its project review process principally if not exclusively through the British Columbia Environmental Assessment Office ("BCEAO"), which has evolved a relatively consistent and predictable approach to public consultation and engagement. The BCEAO favours an informal public consultation process involving notice and comment procedures rather than a more fulsome quasi-judicial process. 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 Section 11 Order specifying the scope, procedures and methods by which the review must be conducted – both during any pre-filing and any formal review stage. [6] 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.

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. [7]It is obviously harder to measure the respective qualities of these two models, but it is worth noting that the most recent high-profile judicial cases involving the adequacy of a particular project review process have tended to strike down aspects of the federal project review process more than those conducted by the BCEAO.

The number of major energy project reviews considered in our Project Survey is small and there were many subjective decisions to be made in classifying projects and/or in assessing the duration of any applicable review process. The Project Survey is therefore intended to be more illustrative than definitive and to suggest directions for further and more systematic inquiry rather than to provide definitive answers. However, we believe the Project Survey yields enough prima facie evidence to suggest that a more systematic and comprehensive comparison of different models for conducting project reviews – particularly the less formal and less quasi-judicial model generally adopted by the BCEAO – would be advisable and useful before the federal government completes its current review and settles on the final form of its project rev