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Energy - Canadian Energy Regulator Act. Manitoba Métis Federation Inc. v. Canada (Energy Regulator)
In Manitoba Métis Federation Inc. v. Canada (Energy Regulator) (Fed CA, 2023) the Federal Court of Appeal considers an appeal by a Metis organization of a decision of the Commission of the Canadian Energy Regulator (the Commission) involving a hydro project advanced by Manitoba Hydro. In the course of the ruling the court reviews portions of the Canadian Energy Regulator Act legislation:[6] The Project crosses an international border. Accordingly, it was subject to a variety of provincial and federal regulatory requirements. Manitoba Hydro was required to seek a provincial licence pursuant to Manitoba’s The Environment Act, C.C.S.M., c. E125, which involved an environmental assessment and hearings before Manitoba’s Clean Environment Commission. Manitoba Hydro also required federal approvals pursuant to the National Energy Board Act, R.S.C. 1985, c. N-7, as repealed by An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, S.C. 2019, c. 28, s. 44 (the NEB Act) and the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52, as repealed by An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, S.C. 2019, c. 28, s. 9 (the CER Act). The provincial and federal processes were coordinated.
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(i) A brief framework of the CER Act
[135] The CER is a departmental corporation established pursuant to section 10 of the CER Act. It is responsible, among other things, for the regulation of international power lines (in this case, the Project) (CER Act, s. 11(b)).
[136] The CER includes the Commission, an independent decision maker that decides, among other things, on the issuance of permits for a power line and makes recommendations to the Governor in Council regarding the issuance of a certificate of public convenience and necessity for a power line. The Commission is also responsible for the ongoing oversight of operations taking place pursuant to certificates (CER Act, ss. 26(1)–(2), 257, 262).
[137] An international power line must be approved through either a permit or a certificate assessment (CER Act, s. 247). The Governor in Council may make an order to designate a project as an international power line, such that it requires a certificate (CER Act, s. 258(1)).
[138] When such a designation is made, the Commission must hold a public hearing and may issue a certificate (CER Act, ss. 52, 262). As mentioned previously, the Commission is a court of record.
[139] After the public hearings have concluded, the Commission decides whether a certificate should issue and, if so, recommends to the Minister of Natural Resources that the Governor in Council approve the issuance of the certificate (CER Act, ss. 262(1), 262(4)).
[140] In deciding whether to recommend issuance of a certificate, the Commission must take into account any Indigenous knowledge provided to the Commission. The Commission must also consider the interests and concerns of the Indigenous peoples of Canada, including with respect to their current use of lands and resources for traditional purposes and the effects on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982 (CER Act, s. 262(2)).
[141] The Governor in Council may approve the issuance of the certificate or refuse to approve its issuance (CER Act, s. 262(9)). As it did here, the Governor in Council may also impose additional conditions on the certificate. The consultation process does not dictate a particular substantive outcome (Tsleil-Waututh I at para. 634).
[142] The Commission may, on the issuance of a certificate, make the certificate subject to the conditions that the Commission considers necessary or in the public interest (CER Act, s. 278(2)). Every certificate is subject to the condition that the provisions of the CER Act and regulations must be complied with (CER Act, s. 279).
[143] It is apparent from my review of the CER Act that the certificate assessment process allows the Commission to carry out its duty of consultation towards Indigenous groups affected by a project and to impose conditions on the certificate that the Commission considers necessary to fulfill those duties and to protect the public interest.
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