CGL Suggests Narrow Focus for Jurisdictional Review

Coastal GasLink (CGL), the pipeline project serving LNG Canada’s export terminal near Kitimat, British Columbia, said November 5 Canada’s National Energy Board (NEB) should apply a narrow focus in deciding who has standing in its constitutional review of whether CGL should be regulated at the federal level.

And that focus, CGL says in comments filed with the NEB regarding requests for standing from more than 50 potential intervenors, should not necessarily include Michael Sawyer, the BC environmentalist who brought the request for a jurisdictional review to the board.

Case law – including previous court rulings – suggests that an applicant must demonstrate a direct personal stake in the proceeding beyond merely a “general public interest”, one of the justifications Sawyer uses in his request for standing. But CGL says that, to its knowledge, the NEB has never applied this test in determining who can participate in one of its hearings.

“Mr. Sawyer suggests that because he brought the jurisdictional question to the board, and is therefore the ‘applicant’ in this proceeding, he should automatically be granted standing to participate,” CGL says in its brief. “Not surprisingly, Mr. Sawyer cited no authority to support this proposition.”

While it is true that Sawyer is the party who brought the application for a jurisdictional review before the board, CGL points out that the board’s own letter of October 22 advising of its decision to review the jurisdictional question makes it clear that he is not automatically assumed to have standing.

“Now that the board has decided to hold a jurisdictional hearing, who brought the original ‘application’ is irrelevant,” CGL says. “This is not a hearing into an application, it is a hearing to consider a constitutional question. Any party seeking to participate in the hearing should be required to demonstrate standing regardless of whether they were the party that originally raised the jurisdictional issue with the board.”

To meet the NEB’s Non-Statutory Guidance principles to determine requests for standing, CGL says, parties seeking standing need to demonstrate that they have a direct, personal interest that will be affected by the board’s constitutional determination as to who should regulate the CGL pipeline.

Even having a direct interest in the pipeline project, CGL says, doesn’t demonstrate a direct interest in the outcome of the constitutional review. In CGL’s view, “very few (if any)” of the applicants for standing – with the exception of CGL and Nova Gas Transmission Limited – would be able to meet this threshold.

“CGL submits that the board should apply this test strictly to ensure that the hearing is properly focused on the narrow constitutional issues in question and is not abused by parties seeking to frustrate development of the project in general.”

Finally, CGL says that legal training and a general familiarity with constitutional law – a justification used by federal Green Party leader Elizabeth May in her application for standing – should not be considered enough to grant standing.

“For a party to demonstrate standing on the basis of information or expertise, they must show that they have specialised information or expertise that will not otherwise be available to the board,” CGL says. “Basic legal training or familiarity with constitutional law principles should not be sufficient on their own to demonstrate standing.”

The board will now review all of the requests before making its determination on who will have standing and setting out its process for the jurisdictional review. No timeline has been set for those next steps.