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
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].