TransCanada Coastal GasLink NEB challenge response

450 – 1 Street SW Calgary, Alberta T2P 5H1 Tel: (403) 920-2107 Fax: (403) 920-2354 Email: catharine_davis@transcanada.com

August 24, 2018 Filed Electronically National Energy Board Suite 210, 517 Tenth Avenue SW Calgary, AB T2R 0A8 Attention: Ms. Sheri Young, Secretary of the Board Dear Ms. Young: Re:

Application of Mr. Michael Sawyer (Application) regarding Jurisdiction over the Coastal GasLink Project (Project) File OF-Fac-PipeGen-T211 01 Coastal GasLink Pipeline Ltd. (CGL) Comments on Threshold Question

Further to the National Energy Board’s (NEB or Board) letter dated August 8, 2018,1 CGL submits that the Board should decline to establish a process to examine the jurisdictional question raised in the Application.

Six years after the public process began to decide whether the Project should be allowed to proceed (a process the applicant chose not to participate in), four years after Project approval, and four years after the applicant’s similar challenge to another approved LNG pipeline, the applicant again seeks to create uncertainty masked in a question of constitutional law. While aware of the issues raised in the Application for at least four years, the applicant has waited until the eve of the publicly known Final Investment Decision (FID) date for the LNG Canada Project to impact that project and associated developments (including the Project).

It is not in the public interest to allow an applicant to proceed at the eleventh hour on a legal question that in effect challenges provincial competence over project assessment and approval, without that person demonstrating they have made every, or at least any, reasonable effort to participate in the provincial review process, that they raised their question within a reasonable time, and that they possess some specialized expertise or material information to illuminate the alleged flaws in the regulatory framework.

The facts indicate the substantive objective of the Application is to frustrate upstream natural gas development in British Columbia (BC). This ulterior purpose renders the Application vexatious and an abuse of process, which should lead the Board to dismiss the Application under its broad public interest jurisdiction.

1

NEB Filing ID: A93442.

August 24, 2018 Ms. Young Page 2

The Application should also be dismissed because the facts on which it depends are hypothetical.

Based on the facts today, the Project is a provincial work with no connection to any federal work or undertaking. The public interest is not served by the Board conducting a jurisdictional inquiry based on speculation about what facts may or may not exist in the future.

Further consideration of the Application in these circumstances is not in the public interest. To do so would reward strategic litigation, that is litigation launched for an ulterior purpose. The Application causes public, regulatory, and investment uncertainty, and puts real, tangible, longterm benefits for communities and First Nations in BC at risk.2 As a result, the Board should exercise its broad public interest jurisdiction to decline to hear the Application without any further process.

In this submission CGL will address the Board’s public interest mandate to decide to hear or not to hear an application. Next, CGL will address the broad discretion the Board has regarding how to make that determination, and, if an application is considered further, then how the Board may ensure a jurisdictional inquiry is in the public interest. CGL will then present its proposed criteria for analyzing the threshold issue of whether an application like the present one should be considered at all, and why the Application fails to meet those criteria in every respect. Finally, if the Board decides instead to apply a prima facie test as part of its determination on whether or not to establish a further process, CGL will explain why the Application fails that test as well.

1.

The Board Has Broad Discretion to Decide in the Public Interest Subsection 12(1) of the National Energy Board Act (NEB Act)3 provides the Board with broad public interest discretion to decide whether or not to consider an application. This broad discretion and judicial deference to public interest-based section 12 decisions were affirmed in Sawyer v. Transcanada Pipeline Limited (Sawyer), in which the Federal Court of Appeal said: Subsection 12(1) of the Act grants the Board “full and exclusive jurisdiction” to determine whether an inquiry would be in the public interest. Public interest determinations made in a regulatory context engage discretionary considerations usually within the expertise of the Board, and subsection 22(1) of the Act limits appeals from Board decisions to this Court to questions of law and jurisdiction. The scope of appellate intervention in respect of a decision made under subsection 12(1) is therefore limited.4

2

3 4

Construction – estimated benefits from construction in BC of the project include: approximately 2,000 to 2,500 construction jobs for four years (direct in-province employment is estimated at over 10,900 person years); over $1 billion in conditionally awarded or anticipated construction contracts for local communities and First Nations in northern BC. Operations – The Project is expected to be used for more than 30 years. Estimated benefits in BC during the first 30 years include: $21 million per year in property taxes to municipal governments for services, schools, roads, and hospitals; in total $42 million spent in BC for operations per year, or $1.26 billion in aggregate over 30 years. The foregoing excludes significant construction and operational benefits, including employment, tax revenue, and royalties, associated with the LNG facility and upstream natural gas production.

RSC 1985, c N-7.

2017 FCA 159 at para 2 [Sawyer].

August 24, 2018 Ms. Young Page 3

The Federal Court of Appeal acknowledged that the NEB can decline to hear cases even where constitutional issues have been raised if doing so is in the public interest.5 2.

The Board is the Master of its Own Procedure and is Not Bound to Apply a Prima Facie Test Subsection 12(1) does not constrain the Board to any factor, test, or precedent. The Board is the master of its own procedure6 and it may look at any factors that it considers relevant to in evaluating whether or not hearing a case is in the public interest. The Board, like any administrative tribunal, is not bound by precedent and is free to adopt new processes and doctrines that are tailored to its mandate.7 Jurisdictional inquiries are complex and require the Board and interested parties to invest considerable time and resources. Such proceedings (regardless of the ultimate outcome) can be very disruptive to a pipeline’s business, and socio-economic development more broadly. They can cast uncertainty over the ability of companies to rely on issued, valid regulatory approvals. CGL submits that the Board’s public interest mandate requires it to act as a gatekeeper to ensure that its broad jurisdiction is not abused by parties who use jurisdictional applications for purposes other than those stated in the application, or to upset reasonable reliance on long-standing permits and the presumptively competent exercise of provincial powers.

In 2014, when Mr. Sawyer asked the same jurisdictional question regarding the Prince Rupert Gas Transmission (PRGT) project, the Board decided to apply a prima facie test to evaluate whether it would establish a full jurisdictional process to consider that application.8 The Board is not bound to apply that test in every section 12 proceeding, or to rely on it as the sole element of a public interest determination.

The Federal Court of Appeal acknowledged in Sawyer that a prima facie test does not require a heavy evidentiary burden and only requires the applicant to establish an “arguable case”.9 The Board’s historic practice of applying this low threshold for jurisdictional applications under section 12 may be appropriate in cases where it is plain and obvious that the applicant’s core interest is in the question actually asked. For example, a prima facie test would be appropriate in an application by a company for a declaration on who regulates its own, already constructed assets. In such a case, the applicant clearly has a stake in the outcome and is well positioned to identify jurisdictional issues with its pipeline that are not apparent to other parties.

5 6 7

8 9

Sawyer at para 11.

Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245 at para 72, citing Knight v Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 SCR 653 at 685.

Altus Group v Calgary (City), 2015 ABCA 86 at paras 16, 31; Weber v Ontario Hydro, [1995] 2 SCR 929 at para 14; Paul Daly, “The Principle of Stare Decisis in Canadian Administrative Law” (2015) 49:3 RJTUM 757 at 768; Nor-Man Regional Health Authority Inc. v Manitoba Association of Health Care Professionals, [2011] 3 SCR 616, 2011 SCC 59 at para 45.

Letter to Mr. Sawyer regarding Jurisdiction over the proposed PRGT Project, November 30, 2015 (A74353) [PRGT Decision].

Sawyer at para 30.

August 24, 2018 Ms. Young Page 4

The low prima facie threshold is not appropriate, however, where it is not plain and obvious on the face of the application what the real interest of the applicant is, nor what personal or property interest of the applicant is at stake, if any. Such an application is freestanding of any real stated purpose. If such a low threshold is the only prerequisite to the Board being seriously engaged with a freestanding jurisdictional question, then any person, for any purpose, at any time may use jurisdictional applications to abuse the Board’s process, waste public resources, and frustrate presumptively valid provincial Crown conduct. CGL submits that such an approach does not serve the public interest.

3.

The Public Interest Would be Served by the Board Adopting a Higher Threshold for Consideration of Freestanding Jurisdictional Inquiries The Board’s approach to freestanding jurisdictional applications must recognize that for projects such as the Project, the pipeline has already been subject to extensive regulatory review by provincial authorities with specialized expertise over intra-provincial pipelines.

Where a jurisdiction legislates, and acts in accordance with its legislation, there should be a strong presumption that the jurisdiction does so competently. Where a provincial government exercises statutory authority to decide whether or not to approve a project, there should be a reasonable and strong presumption that all parties can rely on that decision. This presumption should be further strengthened by factors including: (i) that no government agency raised concerns about jurisdiction during examination of the project application; (ii) the approval has not been challenged under any statutory right to do so; (iii) the scope of the project has not substantively changed since approval; and, (iv) the passage of time. The presumption that provincial approvals are valid and can be relied on by all parties was affirmed by the Board in GH-5-2008.10 For an applicant to justify the Board spending public time and resources to in effect question provincial competence over project assessment, an applicant must overcome this strong presumption. They should also be required to demonstrate that they have specialized expertise or material information that allowed them to detect flaws that other parties, including governments, were unable to identify in the approval process.

Such an approach would require the Board to consider the nature of the party bringing the application, similar to the Board’s “standing” requirements for proceedings that do not have legislated restrictions on who may participate: Where the National Energy Board Act (NEB Act) does not contain a test for standing, the National Energy Board (Board) will determine who will be allowed to participate in a hearing as follows:

10

At the time of NGTL’s application for recognition that the NGTL System had evolved into a federal work and undertaking, NGTL had received prior approval from the provincial regulator to construct, own, and operate a new segment of the System. In regard to the validity of the provincial approval for that segment, the view of the Board was: “It is fair and equitable that TransCanada and others be able to rely on decisions made by provincial regulators and act on them without fear that new applications will be required to a different regulator with possible different results.” [NEB Reasons for Decision GH-5-2008, at 18].

August 24, 2018 Ms. Young Page 5

1. the Board will allow a person to participate if a person’s interest is sufficiently impacted by the Board’s decision; and 2. the Board may allow a person to participate if that person’s participation will assist the Board in making its decision.

Persons wishing to participate must demonstrate to the Board’s satisfaction that they fall within one or both of these two categories.

The Board will consider these factors when deciding if a person’s participation will assist the Board in making its decision: 

The source of the person’s knowledge (for example, local, regional or Aboriginal);



the person’s qualifications (for example, the person has specialist knowledge and experience);



the extent to which the information relates to the application; and



how much the person’s participation will add value to, or assist the Board in making, the Board’s decision.11

The purpose of imposing a standing test is to ensure that the Board’s resources are focused on parties that can assist it in making informed decisions. If parties are required to demonstrate standing to be able to participate in NEB hearings, it follows with greater force that they should be required to meet a standing test to initiate NEB hearings.

CGL notes that in the PRGT case, the Board declined to apply a standing test and instead proceeded directly to a prima facie test.12 As discussed above, the Board is not bound to adopt the same approach now and there are sound reasons for the Board to approach this Application differently.

Based on the foregoing, CGL submits that the Board should adopt a threshold framework for freestanding jurisdictional applications that considers the following factors: (a) the timing and true purpose of the application; (b) whether the applicant has specialized expertise that would position them to illuminate any alleged flaws in the regulatory framework; (c) whether the applicant has identified any material and relevant facts not previously known to the applicable governments and regulators; and,

11

12

National Energy Board, “Non-Statutory Guidance – Participation in Other Hearings” (December 2016) online: <https://www.neb-one.gc.ca/prtcptn/hrng/prtcptnthrhrnggdnc-eng.html>. The Board indicates that this guidance is to be used when section 55.2 of the NEB Act does not apply.

PRGT Decision at 7.

August 24, 2018 Ms. Young Page 6

(d) whether there are any other public interest grounds that should cause the Board to decline to hear the case or to hold its consideration in abeyance.

4.

Mr. Sawyer Does Not Pass a Threshold Analysis Based on the Public Interest Applying each element of CGL’s proposed threshold analysis demonstrates that the public interest would not be served by the Board establishing a process to examine the jurisdictional question raised in the Application. The facts demonstrate that Mr. Sawyer’s true purpose is to engage in strategic litigation for an ulterior purpose. This should not be condoned by the Board. He has no specialized expertise or new material facts that position him to illuminate alleged flaws in the regulatory framework or division of powers. In addition, there are three public interest grounds that warrant the Board dismissing the Application: (1) the Application is vexatious; (2) it is a collateral attack on provincial approvals, which is an abuse of process; and, (3) it is based on hypothetical and speculative facts. Each of these factors justifies the Board exercising its pubic interest jurisdiction to refuse to hear the Application.

Below, CGL groups its submissions around the four threshold criteria set about above. (a) Timing and True Purpose CGL filed its Project application with the BC Environmental Assessment Office (EAO) six years ago. The provincial environmental assessment process took two years, concluding with the EAO issuing an Environmental Assessment Certificate (EAC) on October 23, 2014.13 Six days after the EAO issued the EAC, Mr. Sawyer made a jurisdictional challenge to a different pipeline proposed to serve an LNG facility, PRGT.14 CGL recognizes there is no time limit on commencing section 12 applications. However, the timing of the Application is revealing. Mr. Sawyer was clearly alive to the same technical question of law, and the impact it could have on an approved project, six days after the Project was approved. In his current Application, he claims that the jurisdictional issues are “almost identical” to PRGT,15 yet he waited four years after he had knowledge of these issues, until the eve of the LNG Canada FID, to bring forward the Application. If he had true concern about the division of powers or who the primary regulator should be for the Project, he ought to have raised them at the first opportunity and in any event within a reasonable period after he was evidently aware of what he has identified the issues to be.

Mr. Sawyer’s true purpose is evident in his recent media statements, in which he states that his objective is to subject the Project to a “more thorough environmental assessment” because he believes “the province failed to consider the impact the pipeline would have

13 14 15

Ministry of Environment and Ministry of Natural Gas Development, Environmental Assessment Certificate #E14-03, online: <https://projects.eao.gov.bc.ca/api/document/58868fd3e036fb010576876e/fetch>.

NEB Letter and Application regarding Jurisdiction over the proposed PRGT, November 13, 2014 (A64274), at 3-5.

Application at 3.

August 24, 2018 Ms. Young Page 7

on caribou, global warming, and what kind of effect fracking would have on ground water and water use in northeast B.C.”16 In his media statements regarding the Application, as well as regulatory filings in other recent NEB applications unrelated to the Project, Mr. Sawyer has articulated his concerns as being focused on the number of upstream gas wells being drilled in northeast BC and the potential cumulative environmental impacts of that development.17 These are not questions of jurisdiction, or of who regulates the pipeline.

The timing and true purpose of the Application demonstrate that Mr. Sawyer has not come to the Board with clean hands. He has waited for four years until the eve of a potential FID for the LNG Canada Project as a tactic to frustrate upstream natural gas production. Entertaining the Application would condone Mr. Sawyer’s actions and encourage similar bad behaviour in the future. Rewarding strategic litigation launched for an ulterior purpose is not in the public interest. (b) Mr. Sawyer Has No Direct Interest or Specialized Expertise Mr. Sawyer is an individual with no demonstrated constitutional law expertise or direct interest in the Project. He has not demonstrated that he has specialized expertise that would position him to detect any alleged flaws in the regulatory framework. Mr. Sawyer is an activist who has repeatedly raised concerns about the upstream impacts of natural gas development in BC and has questioned the robustness of BC’s environmental assessment process.18 This background does not enable Mr. Sawyer to detect jurisdictional flaws in the regulatory system that no other party and no government has identified. (c) Mr. Sawyer Has Not Identified Any New Material Facts Similarly, Mr. Sawyer has not identified any new material facts regarding the Project that were previously unknown to the applicable regulators, and what information he does reference is either incomplete or incorrect (as will be detailed below). The complete and correct information to date has been thoroughly considered by regulatory authorities, who are far better placed than Mr. Sawyer to raise jurisdictional concerns, if any. They have raised none.

16

17 18

Michael Grace-Dacosta, “Northern B.C. lawyer launches jurisdictional challenge of LNG pipeline”, Northern Sentinel (4 August 2018), online: <https://www.northernsentinel.com/news/northern-b-c-lawyer-launchesjurisdictional-challenge-of-lng-pipeline/> [Northern Sentinel Article].

Northern Sentinel Article; MH-031-2017 Hearing Transcript Vol. 8, February 1, 2018, (A89753); Sawyer Reply Argument, February 11, 2018 (A89932).

Charles Mandel, “B.C. man eyes court fight over cancelled federal assessment for TransCanada gas pipeline”, National Observer (8 January 2016), online: <https://www.nationalobserver.com/2016/01/08/news/bc-maneyes-court-fight-over-cancelled-federal-assessment-transcanada-gas-pipeline>; Northern Sentinel Article.

August 24, 2018 Ms. Young Page 8

(d) There are Other Public Interest Considerations that Warrant the Board Declining to Hear the Application The Application is Vexatious In Sawyer, the Federal Court of Appeal acknowledged that a valid public interest rationale for the Board to refuse to hear an application under section 12 is a finding that it is frivolous or vexatious.19 “Vexatious” litigation includes litigation commenced for an ulterior purpose.20 Mr. Sawyer has an ulterior purpose. As noted above, his interest is not the technical legal question of the federal-provincial division of powers, but environmental impacts of upstream development of provincial resources.21 These concerns have nothing to do with his stated question. Which level of government has authority over provincial land, water, and resources, and the quality of that regulation, is not affected by a question of whether the Project is properly federal or provincial. The answer to those resource questions is already known and clear. The province has jurisdiction over its land, water, and other resources, and it has jurisdiction over the scale, scope, and technical regulation of how those resources are developed.

Bringing an application for other than its stated purpose is improper and falls squarely within the meaning of “vexatious” litigation. This on its own provides a reasonable basis for the Board to exercise its pubic interest jurisdiction to refuse to hear the Application.

The Application Constitutes an Abuse of Process The Application is a collateral attack on validly-issued provincial permits, and as such is an abuse of process. Canadian law is clear that a regulatory approval is binding and conclusive until it is set aside on appeal or lawfully quashed, and it cannot be attacked in proceedings other than those whose specific object is its reversal, variation, or nullification.22 Based on Mr. Sawyer’s statements of purpose in the media, his awareness of jurisdictional questions as little as six days after the Project’s approval four years ago, and the timing of this Application, CGL’s view is that Mr. Sawyer’s true purpose is to attack the EAC issued by the EAO and other provincial approvals, and consequently to delay or frustrate the Project and related upstream and downstream development.

19 20 21 22

Sawyer at para 6.

Canada v. Olumide, 2017 FCA 42, at paras 22 and 32; Chutskoff v. Bonora, 2014 ABQB 389 at paras 92-93 (leave to appeal to ABCA dismissed).

Northern Sentinel Article; MH-031-2017 Hearing Transcript Vol. 8, February 1, 2018 (A89753); Sawyer Reply Argument, February 11, 2018 (A89932).

Wilson v The Queen, [1983] 2 SCR 594 at 599; Garland v Consumers’ Gas Co., 2004 SCC 25 at paras 71-72; Canada (Attorney General) v TeleZone, 2010 SCC 62 at paras 60-62; British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52 at para 28.

August 24, 2018 Ms. Young Page 9

The multi-year, stringent regulatory review of the Project by the EAO included stakeholder notification and opportunities for public comment, a comprehensive environmental assessment, and significant investment of time and resources by individuals, Crown ministries, government departments and agencies, and First Nations.

Mr. Sawyer had the ability to participate in the EAO’s review process, including to provide comments on the EAO’s draft Application Information Requirements that formed the basis for the environmental assessment, and to challenge the EAC through a judicial review to the Supreme Court of BC. Similarly, the Project was subject to detailed technical review by the BC Oil and Gas Commission (OGC) in 2014 and 2015, which included additional public consultation and consideration of environmental impacts. The process culminated in the OGC issuing eight permits authorizing construction and operation of the Project in 2015. Mr. Sawyer could have sought to participate in the OGC process or challenge the OGC permits in the courts.

He chose not to do so. If Mr. Sawyer’s position is that the EAO or OGC assessments of the Project were inadequate, the proper process was to challenge the EAC or OGC permits through judicial review in the BC courts. Challenging the EAC and OGC permits indirectly through a jurisdictional application to the NEB years after BC issued them is an abuse of process that should not be condoned by the Board.

The Application is Based on Hypothetical and Speculative Facts The Application is based on speculative and hypothetical facts. While CGL has expressed its expectation that the Project will be connected to the NGTL System in the future, contrary to statements in Mr. Sawyer’s Application there is no existing or applied-for pipeline to connect the Project to the NGTL System.

The details of any future connection between the Project and a federal work or undertaking, as well as the proportion of supply for the Project that might come from any federal work or undertaking as opposed to other sources, are critical facts for any assessment of whether the Project and a federal work or undertaking form a single undertaking, prima facie or otherwise. The public interest is not served by the Board conducting a jurisdictional inquiry in the abstract, based on hypotheticals and unknowns.

5.

Alternatively, Mr. Sawyer Has Failed to Meet the Prima Facie Test As discussed above, simply because the NEB has applied a prima facie test to applications of this type in the past, it need not do so here. CGL submits that the public interest would be best served in a case like this by the Board analyzing criteria resulting in a higher threshold. However, if the Board views application of a prima facie test as useful in assessing whether a jurisdictional inquiry is in the public interest, CGL submits that the Application fails this test. The facts known today do not establish an arguable case that the Project and the NGTL System now form a single federal work or undertaking.

August 24, 2018 Ms. Young Page 10

Mr. Sawyer proposes that the Board apply a prima facie test to the Project based on the first branch of Westcoast.23 To succeed in such a prima facie analysis under this branch of Westcoast, the facts must support an “arguable case” that a provincial work and an established federal work or undertaking are “functionally integrated and subject to common management, control and direction”.24 The Federal Court of Appeal in Sawyer characterized this “arguable case” standard as “whether at first blush the project falls within federal jurisdiction”.25 In seeking to show that the Project and the NGTL System are “functionally integrated”, Mr. Sawyer relies almost entirely on (1) an incorrect understanding of the facts; (2) a false proposition that the Project and PRGT are similar (he says they are virtually the same); and (3) obiter dicta in the Sawyer case about PRGT. The Project and the NGTL System are not functionally integrated, and the facts of the Project are materially different than PRGT. In the case of PRGT, the Board found that a federal work, the North Montney Mainline (NMML), would be dedicated to PRGT after it was connected.26 The Board expressed the view that on connection to PRGT, NMML could operate independently of the NGTL System, in that NMML would be dedicated to PRGT, to provide express gas transmission service to an LNG facility.27 In contrast, there is no current proposal to physically connect the Project to a federal work and undertaking, and if the Project were to connect to the NGTL System in the future, the two systems would serve different functions. The NGTL System would not be dedicated to the Project and could function without it. The Project will function as an express single-purpose pipeline for one downstream provincial facility, the LNG Canada Project. In contrast, the NGTL System would continue to serve its functions as an expansive, complex, and integrated network to gather gas supply at more than 1000 receipt points for transmission to over 300 delivery points, including local and domestic markets, and the United States. NGTL’s function would not be integrated with and would not be dependent on the Project, and CGL would not provide the same services as NGTL. In the case of PRGT, the only planned inlet was a federal work, NMML. In contrast, the Project may connect to upstream provincial sources of supply, including direct connections to provincially-regulated producer facilities.

CGL acknowledges that TransCanada would manage the NGTL System and the Project, and would apply similar engineering standards, policies and procedures, and the expertise of its personnel to both. The approach of standardizing policies and procedures is common for any large organization, as is sharing the expertise of personnel to do work.

TransCanada applies the same approach across other gas and liquids assets. No regulator 23 24 25 26 27

Application at 5; Westcoast Energy Inc. v Canada (National Energy Board), [1998] 1 SCR 322.

PRGT Decision, at 8.

Sawyer at para. 26.

NEB Reasons for Decision GH-001-2014, at 33-34 [GH-001-2014].

GH-001-2014 at PDF 33-34, 61.

August 24, 2018 Ms. Young Page 11

or court in Canada has ever held that an “undertaking” for the purposes of the Constitution Act includes all assets directly and indirectly owned by the same company or subject to standardized operating procedures or engineering standards. The “indicia” identified by Mr. Sawyer are not enough to establish an arguable case.

Further, the facts do not support any finding “on first blush” that the Project and the NGTL System would be under common control or direction. Shell and its Joint Venture Partners will control the use of the Project, including its utilization and 100 percent of the volume to be transported on it. In contrast, they do not control or direct the NGTL System, nor any major component of it. TransCanada will maintain sole direction and control over the NGTL System, including the conditions for gas volumes to enter and exit the NGTL System and how gas is flowed on the System to meet aggregate system requirements.

These facts do not support a finding that “on first blush” the Project and the NGTL System currently form a single federal work or undertaking.

For these reasons, even if the Board considers a prima facie test as part of its threshold analysis of whether or not hearing the Application is in the public interest, the facts do not add up to an “arguable case” that the Project and the NGTL System form a single federal work or undertaking.

6.

Conclusion The Application is an attempt by Mr. Sawyer to use the NEB to indirectly challenge natural gas development in BC. He chose not to participate in the provincial regulatory processes for the Project, and chose not to raise his concerns over the last four years, when he knew he could. Instead, he has brought this Application on the eve of an FID for the LNG Canada Project in an obvious attempt to frustrate that project and its associated upstream development. The question asked is not his core interest, and he has not demonstrated that a technical constitutional question on the division of powers will directly and materially affect his interests. He has failed to demonstrate any specialized expertise or material information that would warrant the NEB spending time and resources reviewing the jurisdiction of a Project that obtained valid provincial permits four years ago. In addition, the Application relies on key facts that are currently uncertain, hypothetical or speculative. Consequently, any assessment of the question raised in the Application would be theoretical.

Any one of these grounds is sufficient for the Board to decline to hear the Application.

Entertaining the Application would condone Mr. Sawyer’s strategic litigation and encourage similar bad behaviour in the future. CGL submits that such an outcome would be contrary to the public interest. Not only would such an outcome waste public and private resources, it would create regulatory uncertainty and inefficiency at a time when

August 24, 2018 Ms. Young Page 12

these issues are jeopardizing Canadaâ&#x20AC;&#x2122;s global competitiveness,28 and it would put real, tangible benefits to people in BC, including First Nations, at risk.29 The Boardâ&#x20AC;&#x2122;s mandate requires it to take these considerations into account when making a determination in the public interest.

For all of the above reasons, CGL submits that the Board should exercise its broad public interest jurisdiction to decline to hear the Application without any further process.

All of which is respectfully submitted on August 24, 2018.

Yours truly, TransCanada PipeLines Limited Original signed by Catharine Davis Vice President, Natural Gas Pipelines Law cc:

28

29

W. Andrews, Counsel to Michael Sawyer P. Jeakins, BC Oil and Gas Commission

For example, see Canadian Association of Petroleum Producers, A Global Vision for The Future of Canadian Oil and Natural Gas, (July 2018) online: <https://www.capp.ca/~/media/capp/customerportal/publications/315421.pdf?modified=20180607163025>.

See note 2.