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Home > Speeches and Presentations > Speeches and Presentations 2009 > How We Work

How We Work

Presented by
Sheila Leggett
Vice-Chair
National Energy Board

Prepared for an Administrative Law Course
sponsored by the NWT Board Forum

February 2009

Good afternoon and thank you for inviting me here to share some of the processes that the NEB uses to fulfill its mandate. I see from your agenda that you have had full days gaining an appreciation for the legal aspects of tribunals. What I hope to provide you with this afternoon is an overview of some of the ways that we operationalize the legal and public interest aspects of our mandate.

Who are we and What do we do?

The NEB is an independent regulatory tribunal that was established in 1959. We are 50 years young and those of us who are fortunate to be associated with the Board now are benefiting from the rich history of the visionaries who have served this organization before us. We report to Parliament through the Minister of Natural Resources. We currently have about 340 staff, 7 permanent Members and 4 temporary Members. The permanent Members are appointed for 7 year terms. One of our temporary Members has been appointed for a specific file, while our other temporary Members are involved in a broad range of activities associated with our mandate. Temporary Members are not required by the legislation to reside in Calgary and are not engaged on a full time basis with the Board. As part of our mandate, we regulate approximately 45 000 km of pipelines across Canada, including the tolls and tariffs. Other key functions include the construction and operation of international power lines and designated inter-provincial power lines, natural gas imports and exports, crude oil, natural gas liquids and electricity exports, and oil and natural gas activities on frontier lands and offshore areas not covered by federal/provincial management agreements. In 1999, the NEB moved away from prescriptive regulation to goal oriented regulation. With it came the requirement for companies to have management programs and systems in place. We believe that the groundwork has been laid to enable companies to effectively deal proactively with hazards. The next step that the Board has taken is to develop a risk-based life cycle model which includes all of the available data and knowledge about the companies the NEB regulates. This helps the Board identify areas where it can use its compliance activities to meet the goals of safety and security of the public and the environment, as well as to influence change and promote a culture of excellence throughout the industry.

Our Home Base

In 1991, the federal government decided that the Board should relocate from Ottawa to Calgary. While our offices are located in Calgary, we routinely travel throughout Canada, whether it be for hearings, inspections of existing infrastructure regulated under our mandate or to participate in meetings and conferences. As Board Members, we are responsible for making regulatory decisions. We each have our own areas of technical expertise and we are well supported by the highly talented staff that work for the Board. Gaétan Caron is both our Chair and CEO and, therefore, holds accountability for the entire organization. He, along with our other Members, make all regulatory decisions. On the management side, he is supported by our COO. In 2007, examples of our regulatory activities included the issuance of 483 Certificates, Orders, Permits and Letter approvals, 12 public hearings and the consideration of 18 landowner complaints. In our Compliance Monitoring program, 25 inspections were undertaken during construction, 24 inspections of operating pipelines and facilities were conducted, 19 workplace inspections were done under the Canada Labour Code, 4 Financial audits and 4 Management system audits were completed.

Governance Model

Over the years, we have developed a governance model that describes how we interact as Board Members with the staff. We use this model to guide us in our Strategic Planning process and in all of our interactions. The Board, composed of our Members, is responsible for the content of the Strategic Plan, including Purpose, Vision, Values and Goals. You will see on this diagram that there is overlap between the Members and the staff with respect to Goals. Staff's focus in our governance model is the "how", while Members define the "what". We have also invested time during the last couple of years to document our governance processes and are just completing the production of our inaugural Board Member Governance Manual. It has taken some time and discussion to produce the manual, given the very different roles and responsibilities that members of a quasi-judicial tribunal such as ours have, compared to a private sector Board of Directors. Our goal is to publish this manual on our website and to update it on a regular basis. Another document that we are working on is a Reference Manual for Board Members that documents our policies and procedures. Beyond the National Energy Board Act, we are also governed by the federal Conflict of Interest Act. Another document that we compiled is a binder that outlines hearing processes and procedures. We have used a template which is then tailored to each specific hearing and is available for the Presiding Member as a tool to run effective and efficient hearings. It is this combination of tools, combined with dedicated and highly skilled Members and staff, that allows the Members to make the best regulatory decisions possible, using the public interest as our guiding post.

Hearings

Our hearings are a very public and critical piece of our regulatory business. They range from large, formal procedures that involve many stakeholders, national attention and the consideration of multi-billion dollar projects to hearings that involve two parties and one Member sitting as the decision-maker, on behalf of the Board. We typically sit on hearings as a Panel of 3 and have found that this process works very well. On matters of jurisdiction, our practice has been to have a Panel of 5 and for smaller matters, such as detailed route hearings for a project which has already received approval of a corridor, we sometimes designate a single member. Another tool that is provided to us in our legislation is to appoint a panel (again, typically 3 members) to hear the evidence and then bring a recommendation forward to the full Board for its decision. A current example of this type of approach is a hearing that we completed last month to hear from interested parties on the financial aspects of pipeline abandonment. The Panel of 3 will be bringing forward a report to the full Board for its consideration.

Hearings

All hearings involve complex issues and panel members each have an individual responsibility to have read all of the evidence and to have considered all aspects of the evidence that is placed on the record. Each member of the Panel is an individual decision maker and there is no "boss" in terms of deciding what the final decision will be. In fact, we have a dissent protocol that outlines the steps taken, should a unanimous decision not be reached. This protocol clearly sets out the process by which a member or members can ensure that their decision is communicated, should they not concur with the decision of the majority of the panel members.

Hearings

The role of the Panel Chair is unique in that they are the "process" member of the Panel. From the day that the Panel is struck until the day that the decision is issued and the Panel becomes functus, they are the coordinator of Panel business - which is to make the best regulatory decision in the public interest. The Panel Chair presides over the hearing room and sets the tone for the decorum of the hearing. Part of the way that the Panel Chair sets the tone of the hearing room is through the delivery of his or her Opening Remarks. We find that best practice is for the Panel Chair to share these remarks with their panel mates before the hearing and seek input for any modifications. The Panel Chair is the facilitator of ensuring that an efficient and effective review of a hearing application unfolds. However, with respect to the regulatory decision-making requirements of the Panel, the Chair is one of the Members and has no additional influence than any of the other Members.

Hearing Style

The format of a hearing is an important component to ensuring that the Board hears the broadest range of viewpoints that parties want to put forward. A hearing where all parties are represented by regulatory lawyers can have a very different flavour than one where there are many unrepresented parties. It is critical that no matter whether parties are represented or not, the hearing process must be established in a manner that all parties understand the process and are comfortable expressing their viewpoints to the Board in a respectful manner. One of the tools that we use is a Hearing Order that is published shortly after a Panel is established for a hearing. This document sets out all of the hearing process steps and associated timelines. It is distributed to all parties who have expressed an interest in the application that is being heard and is also posted on our website. We have also found that pre-hearing process meetings are useful for hearings, especially in communities that are not familiar with the Board. Staff and, sometimes, Panel Members will meet with participants in advance of the hearing to explain the purpose of the hearing, describe the steps within the hearing process and answer any questions about the process. We are also starting the practise of having staff involved in early engagement with communities re NEB process, when a proponent has indicated their intention to file an application with the Board. We find that early and meaningful engagement about NEB process with communities that may have an NEB regulated project in their area contributes to a highly effective hearing process.

Other Board Institutions

The majority of regulatory decisions that occur outside of hearing processes are accomplished at weekly Board meetings and through the delegation of duty panels. Items that require full Board discussion are dealt with at our Board meetings. There are many other decisions that do not require full Board discussion and require timely decisions. Therefore, the Secretary of the Board establishes a Duty Panel for each week and that group of three Members is responsible for those regulatory decisions. In addition, we have two active Board Committees: the Regulatory Policy Committee and the Governance Committee. A subset of Members sit on each of these Committees, which have their own Terms of Reference and which report to the Board. We also have Members' Meetings where no regulatory decisions are taken. These meetings cover all other aspects of areas where Board Member feedback and input are sought. In some cases, the items dealt with at the Members' Meetings are for the Board Members' information. Examples of items brought before the Members at these meetings include goal reports based on our Strategic Plan, a workload look forward and upgrades to internal processes that are in place to support the Board in areas such as compliance, IT and application review activities. Every 6 months, the Board Members and the Executive Team have a discussion as to what is working well within the Board and the Members/staff interactions and areas for improvement.

Working Together in the Public Interest

Regulatory decision-making is a complex process. I hope that I have been able to provide you with an overview as to how we organize ourselves to make these important decisions in the public interest of all Canadians.

Additional information:

See Participate in a Public Hearing to view documents on:

• The Public Hearing Process - Your Guide to Understanding NEB Hearings - December 2007
• National Energy Board Workshop - How to Participate in a Hearing - June 2007
• The Public Hearing Process, an 11-minute video describing the role of the NEB, and how to participate in the public hearing process (Flash Format). To obtain copies of the videos, you may access our Video Order Form.
• Hearings and Information Sessions Schedule and links to audio broadcasts

 

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Date Modified:

2011-10-28