Appendix C: Summary of Released Commission Decisions, Recommendations and In Progress Hearing Applications
The Commission adjudicates a multitude of matters under the CER Act. These range from smaller facilities applications, such as those assessed under section 214 of the CER Act, abandonment of facilities that are no longer required, land matters complaints, compensation matters and large-scale pipeline projects assessed under section 183 of the CER Act, to decisions on shipper complaints, company tolls hearings, abandonment cost estimates and electricity permits and certificates.
The Commission’s processes are fair, inclusive, transparent and efficient. The Commission exercises its powers and performs its duties and functions in a manner that respects the Government of Canada’s commitments with respect to the rights of the Indigenous Peoples and offers meaningful engagement opportunities to stakeholders. This keeps Canada’s energy infrastructure safe, protects people and the environment, and enhances Canada’s global competitiveness.
2023-24 Commission Decisions and Recommendations
Decision Reports and Recommendations are the result of larger, more formal proceedings (such as applications under section 183 of the CER Act, tolls and tariff applications, etc.). Decisions and recommendations issued by the Commission from 1 April 2023 to 31 March 2024 are described below.
Pipeline Infrastructure:
NorthRiver Midstream NEBC Connector GP Inc. – NEBC Connector Project
Recommendation: The Commission found that the project is, and will be, required by the present and future public convenience and necessity, and recommended that the GIC approve the application. The Commission set out 49 conditions, including several related to offsets to reduce the project’s contribution to cumulative effects in the development area, including on fish and fish habitat, wildlife and wildlife habitat, and traditional land and resources, which are all impacted by existing cumulative effects. GIC approval to issue a Certificate of Public Convenience and Necessity was granted on 21 December 2023 with no changes to the recommended conditions.
Background: The NEBC Connector project consists of two parallel, 215-km small-diameter pipelines transporting natural gas liquids and condensate from an existing facility 25 km northwest of Wonowon, British Columbia to a riser site in the Gordondale area of Alberta. Roughly 91% of the route parallels existing linear disturbances. During the hearing process, three workshops were held with participants regarding process design, cumulative effects assessment, and the development of NorthRiver’s offset plan. Oral hearings were held to hear Indigenous knowledge, cross-examination, and argument. When the hearing process concluded, 26 intervenors were registered, including 21 Indigenous communities, four government departments, and one landowner. The CER’s Crown Consultation Coordinator also actively participated in the hearing process providing recommendations for consideration by the Commission, the majority of which were addressed in the Commissions’ Recommendation to the GIC. The GIC, in its approval, made no additions or changes to conditions.
Hearing Order number: OH-001-2022
The Commission released its Recommendation Report on 18 October 2023.
Governor in Council approval: 21 December 2023
Order number: Certificate OC-067 and Order XO-003-2023
REGDOCS File number: [Filing C26744]
Panel of Commissioners: K Penney (Presiding), M. Watton, W. Jacknife
Pipeline Variances:
Trans Mountain Pipeline ULC – Trans Mountain Expansion Project – Certificate of Public Convenience and Necessity OC-065 – Section 211 Deviation Application for Plan, Profile and Book of Reference (“PPBoR”) Sheet M002-PM03011-014
Decision: The Commission approved the 1.3 km pipeline route deviation in the Pípsell (Jacko Lake) area of British Columbia.
Background: Trans Mountain applied for the revised route after encountering significant technical challenges with micro-tunnelling along a portion of the previously approved route. To accommodate these geotechnical challenges, Trans Mountain proposed changing the construction method from micro-tunnelling to a combination of conventional open trench and horizontal directional drilling, which required a change to 1.3 km of the route. The revised route and location of the proposed work holds spiritual and cultural significance to Stk’emlúpsemc te Secwépemc Nation (SSN), who opposed the application. The Indigenous Caucus of the Indigenous Advisory and Monitoring Committee for the Trans Mountain Expansion and Existing Pipeline filed a letter of comment. In considering the application, the Commission conducted an expedited process involving written submissions and requested process steps from SSN and Trans Mountain, and information requests between the two parties and from the Commission. A three-day oral hearing was held in Calgary, Alberta at which the Commission heard Indigenous knowledge from SSN, as well as cross-examination and argument by the two parties. The Commission made a number of technical findings on the feasibility of micro-tunnelling, considered the balancing of societal interests, the accommodation of SSN’s rights and interests, the impact of the UN Declaration, and ultimately found that the deviation was required based on the available evidence.
Hearing Order number: n/a
The Commission released its decision on 25 September 2023. The Commission released its reasons on 20 October 2023.
Order number: AO-003-OPL-003-2020
REGDOCS File number: [Filing C26807]
Panel of Commissioners: K. Penney (Presiding), S. Luciuk, M. Watton
Trans Mountain Pipeline ULC – Application for Variance of Pipe Diameter, Coating and Wall Thickness Trans Mountain Expansion Project – Mountain 3 Horizontal Directional Drill Section 69 of the Canadian Energy Regulator Act
Decision: The Commission denied Trans Mountain’s request to vary Schedule A of Certificate OC-065 with respect to the diameter, wall thickness and coating of pipe in an approximately 2.3 km section between Hope and Chilliwack, British Columbia on the Black Pines to Burnaby Tank Terminal segment of the Trans Mountain Expansion Project (TMEP).
Background: In its variance application and subsequent argument, Trans Mountain requested a decision by 30 November 2023 to advance the timely completion of the Mountain 3 Horizontal Directional Drill (HDD) and the overall TMEP. The Commission conducted an expedited process and held a one-day oral hearing. Trans Mountain proposed its contingency option of installing NPS 30 pipe within the 2.3 km HDD segment (rather than the approved NPS 36 pipe), as the HDD was very challenging due to the hardness of the rock and the complexity of a 2.3 km HDD. Trans Mountain submitted that progress of the 48-inch reaming operation was unpredictable, with a risk of tool loss and additional delay, and the Mountain 3 segment was on the critical path for the TMEP in-service date. The Commission found that Trans Mountain did not demonstrate adherence to its Quality Management Plan as filed under Condition 9 of the Certificate and did not demonstrate it could have full in-line inspection capability at the start of operation.
Hearing Order number: n/a
The Commission released its decision on 5 December 2023. The Commission released its reasons on 20 December 2023.
Order number: n/a
REGDOCS File number: [Filing C27768]
Panel of Commissioners: K. Penney (Presiding), T. Grimoldby, S. Sajnovics
Trans Mountain Pipeline ULC – Trans Mountain Expansion Project – Certificate of Public Convenience and Necessity OC-065 (the “Certificate”) – Application for Variance and Condition Relief under the Certificate
Decision: The Commission approved Trans Mountain’s application pursuant to section 190 to vary Schedule A of Certificate OC-065 with respect to the diameter, wall thickness and coating of pipe in an approximate 2.3 km section between Hope and Chilliwack, British Columbia, on the Black Pines to Burnaby Tank Terminal segment of the TMEP, subject to conditions. The Commission also granted Trans Mountain’s request for relief to adhere to the Quality Management Plan filed under Condition 9 of the Certificate.
Background: In its 14 December 2023 variance application, Trans Mountain requested a decision by 9 January 2024 to avoid delays to the TMEP and in consideration of significant consequences to Trans Mountain and third parties. In response, the Commission conducted an expedited process for the application and held a one-day oral hearing. Trans Mountain re-proposed its contingency option of installing NPS 30 pipe within the 2.3 km HDD segment (rather than the approved NPS 36 pipe) and reaffirmed that during construction of the Mountain 3 HDD crossing, it encountered several complex challenges, including hard rock conditions (causing premature tooling wear) and the presence of multiple fractured areas within the bedrock (allowing high rates of water ingress). If it proceeded with its plan to install NPS 36 pipe, there was significant risk that the borehole would become compromised, or that the HDD would fail altogether, causing an approximate two-year delay in the schedule. In its December variance application, Trans Mountain offered additional evidence regarding the technical challenges, impact on design and operation, and its quality management processes. In its decision, the Commission found that the variance application and subsequent submissions satisfactorily addressed the Commission’s concerns around in-line inspection capability and material quality.
Hearing Order number: n/a
The Commission released its decision on 12 January 2024. The Commission released its reasons on 31 January 2024.
Order number: AO-012-OC-065
REGDOCS File number: [Filing C28265]
Panel of Commissioners: K. Penney (Presiding), T. Grimoldby, S. Sajnovics
International Power Lines:
Hydro-Québec Hertel-New York Interconnection Line – Application for Permit (Section 248 of the Canadian Energy Regulator Act)
Decision: The Commission granted the relief sought by Hydro-Québec and issued electricity Permit EP-306 pursuant to section 248 of the CER Act. The Permit contained 23 conditions.
Background: On 8 July 2022, Hydro-Québec (HQ) submitted an application for a permit to build and operate an underground, direct current, 400 kV transmission line approximately 58 km long, from the Hertel substation in La Prairie, Québec to an interconnection point at the Canada-US border under the Richelieu River. The Project is in Québec and most of the Hydro-Québec system is regulated provincially. The Québec government approved the Project in June 2023. The CER has jurisdiction over the transmission lines which cross international boundaries. The Commission issued permit EP-306 for the Project in July 2023 which included 23 conditions. The Project was supported by the Mohawk Council of Kahnawà:ke who entered into a memorandum of understanding to negotiate a final agreement under which the Mohawk Council of Kahnawà:ke would become a joint owner with HQ of the Québec portion of the Project. Once the Project is complete, the Project will provide electricity to New York state.
Hearing Order number: n/a
Permit number : EP-306
REGDOCS File number: [Filing C25602]
Panel of Commissioners: M. Chartier (Presiding), T. Grimoldby, S. Luciuk
Tolls and Tariffs Decisions:
Trans-Northern Pipelines Inc. (TNPI) – Application for Approval of Incentive Tolls Settlement Agreement
Decision: The Incentive Tolls Settlement Agreement (ITSA) was approved 19 December 2023 and included consideration of TNPI’s Ontario – Quebec pipeline configuration which is separated into two segments (Montreal, Quebec to Toronto, Ontario and Nanticoke, Ontario to Toronto, Ontario).
Background: TNPI first sought an agreement with shippers, guided by the CER’s Guidelines for Negotiated Settlements of Traffic, Tolls and Tariffs. No agreement was reached, resulting in the application. Two TNPI shippers participated as intervenors in the hearing: Imperial Oil, who supported the ITSA proposal, and Suncor Energy, who opposed it. Two other shippers did not participate as intervenors in the hearing, but Shell provided a letter of support. The Commission found that the ITSA would result in just and reasonable tolls. The two-segment toll design would likely reduce existing cross-subsidization and better adhere to the fundamental tolling principle of having shippers pay for what they use compared to a rolled-in approach. Tolls will now be determined for each segment of the system rather than the current approach where all shippers are charged tolls based on costs of the entire TNPI System. In addition, the Commission found that the ITSA tolls are generally competitive with marine and rail alternatives.
Hearing Order number : RH-001-2023
The Commission released its reasons and decision and order on 19 December 2023.
Order number : TO–002–2023
REGDOCS File number : [Filing C27751]
Panel of Commissioners: K. Penney (Presiding), T. Grimoldby, S. Luciuk
NOVA Gas Transmission Ltd. (NGTL) – Application for the Reaffirmation of the North Montney Mainline Tolling Methodology
Decision: On 27 March 2024, the Commission approved NGTL’s North Montney Mainline (NMML) tolling application.
Background: NGTL filed an application on 23 May 2023 for the reaffirmation of the NMML Tolling Methodology, which was filed in compliance with Condition 2 of the 20 March 2020 Order TG-002-2020. Condition 2 requires that NGTL must re-apply to the Commission for approval of a revised tolling methodology on the NMML if, over the operating life of the NMML, some or all of the gas transported on the NMML is delivered to new large markets, such as the LNG market on the Pacific coast. NGTL’s proposal is to connect NMML with the Coastal GasLink pipeline at the Willow Valley Interconnect (WVI) with an in-service date of April 2024. As the Coastal GasLink will transport gas to LNG Canada Development Inc.’s export facility on the west coast, an application was required from NGTL. Final argument was held in Calgary, Alberta on 9 January 2024. The Commission determined that the tolling methodology proposed by NGTL was just and reasonable following the start of deliveries at the WVI. The Commission imposed additional consultation conditions on NGTL as well.
Hearing Order number: RH-003-2023
The Commission released its decision on 27 March 2024.
Order number: TG-002-2024
REGDOCS File number: [Filing C29055]
Panel of Commissioners: S. Luciuk (Presiding), T. Grimoldby, S. Sajnovics
Review and Variance Application of TransCanada Keystone Pipeline GP Ltd. (Keystone) concerning the Decision in the RH-005-2020 Hearing
Decision: On 26 July 2023, the Commission dismissed the application, finding that Keystone did not, on a prima facie basis, raise a doubt to the correctness of the RH-005-2020 Decision.
Background: On 23 January 2023, Keystone filed an application seeking a review and variance regarding the Commission’s decision on Phase 1 of the RH-005-2020 proceeding. The application asserted the Commission erred in its decision concerning the recovery of certain costs. The decision required Keystone to remove costs from its Variable Tolls, including certain Drag Reducing Agent expenses. Keystone, in its 23 January 2023 application, alleged that there was doubt as to the correctness of the RH-005-2020 decision and filed the review and variance application. As part of the adjudicative process, the Commission invited comments from interested persons and received letters from Phillips 66 Canada Ltd., Cenovus Energy Inc., Imperial Oil Ltd., and HF Sinclair Refining Marketing LLC, all of whom opposed Keystone’s review and variance application.
Hearing Order number : AO-001-RH-005-2020
The Commission released its reasons and decision on 26 July 2023.
REGDOCS File number : [Filing C25670]
Panel of Commissioners : T. Grimoldby (Presiding), S.vLuciuk, M. Chartier
Frontier Exploration and Production:
Inuvialuit Energy Security Project (IESP) Ltd. – Applications under Hearing Order MH-002-2022:
- Early Site Works application, filed 24 June 2022
- Well Workover application, filed 29 July 2022
- Energy Centre (installation and operation) application, filed 30 September 2022
Decisions: Three authorizations were granted under Hearing Order MH-002-2022 which included Commission approval of the IESP’s Early Site Works application and Well Workover application on 28 June 2023, and approval of the Energy Centre (installation and operation) application on 7 March 2024.
Other decisions related to the project made during the fiscal year included the Development Plan amendment (from liquid natural gas to compressed natural gas), approved 22 June 2023 and the TUK M-18 well approval authorization, approved 23 February 2024.
Background: The IESP involves constructing a gas plant (Energy Centre) that will convert natural gas into compressed natural gas and synthetic diesel for regional use in the Town of Inuvik and Hamlet of Tuktoyaktuk, reducing dependence on imported fuel trucked or barged in from southern Canada. The Project is located approximately 16 km south of Tuktoyaktuk in the Northwest Territories, within the Inuvialuit Settlement Region, on Inuvialuit private lands. The Inuvialuit own and administer the surface and subsurface interests on the private lands for the IESP and Indigenous communities provided unanimous support for the Project. Regulated under the Northwest Territories’ Oil and Gas Operations Act and associated regulations, the Project was the first public hearing held by the Commission under this act. The IESP also involved Development Plan decisions and was also reviewed by the Inuvialuit Environmental Impact Screening Committee under the Inuvialuit Final Agreement, whose decision on the Project was released in 2021, prior to the applications being filed with the Commission.
Hearing Order number: MH-002-2022
The Commission released its decisions on 28 June 2023 and 7 March 2024.
Order numbers: OA-1414-001, OA-1414-002, OA-1414-003
REGDOCS File number: [Filings C25240, C25800, C28698]
Panel of Commissioners: M. Watton (Presiding), K. Penney, W. Jacknife
In Progress Hearing Applications
The following are applications that were being assessed by the Commission in 2023-24 that will result in future Decisions or Recommendations:
Tolls and Tariffs:
TransCanada Keystone Pipeline GP Ltd. – Compliance Filing to the RH-005-2020 Decision
Section: Part 3, section 230 CER Act
Background: On 14 December 2022, the Commission issued its decision on Phase 1 of the RH-005-2020 proceeding, which considered a complaint from Phillips 66 Canada Ltd. and Cenovus Energy Inc. regarding Keystone’s proposed tolls. The accompanying Toll Order TO-005-2022 directed Keystone to recalculate and refile tolls for the years 2020 and 2021 to remove certain Drag Reducing Agent (DRA) expenses, capital-related costs, and carrying charges. Keystone made the TO-005-2022 compliance filing on 14 April 2023, which included a proposed methodology to allocate DRA expense to different uses of DRA. The Commission established a process to consider the compliance filing, which includes cross-examination and oral argument in Summer 2024.
Hearing Order number: AO-001-RH-005-2020
REGDOCS File Number: [Filing C24055]
Panel of Commissioners: T. Grimoldby (Presiding), S. Luciuk, M. Chartier
Trans Mountain Pipeline ULC – Application for Approval of Interim Commencement Date Tolls and Other Matters related to the Transportation of Petroleum on the Expanded Trans Mountain Pipeline System
Section: Part 1, section 67 and Part 3, section 230 CER Act
Background: On 1 June 2023, Trans Mountain applied for approval of interim tolls and other matters associated with the transportation of petroleum on the expanded Trans Mountain pipeline system. The interim tolls will apply on the Trans Mountain pipeline system starting on the commencement date of the expanded system. On 30 November 2023, the Commission issued a preliminary decision which focused on a narrower set of issues and commenced a process to consider more detailed submissions and a broader range of issues related to establishing the Final Interim Tolls (FIT). The FIT hearing is ongoing and is expected to conclude in 2025.
Hearing Order number: RH-002-2023
REGDOCS File Number: [Filing C24695]
Panel of Commissioners: M. Watton (Presiding), K. Penney, S. Luciuk
Abandonments:
Westcoast Energy Inc. – Application for the Pointed Mountain Pipeline Abandonment Project
Section: Part 3, section 241 CER Act
Background: Westcoast is seeking to abandon the Pointed Mountain pipeline, which consists of an approximately 55 km, 508 millimetre (20 inch) pipeline crossing the Yukon Territory, Northwest Territories, and British Columbia borders.
Hearing Order numbere: MH-004-2022
REGDOCS File Number: [Filing C17537]
Panel of Commissioners: M. Chartier (Presiding), T. Grimoldby, S. Luciuk
Frontier Exploration and Production:
Imperial Oil Resources N.W.T. Limited – Norman Wells Operations Application for Variance of Operations Authorization OA-1210-001
Section: Section 5 Canada Oil and Gas Operations Act
Background: In its Operations Authorization (OA) Variance Application, Imperial is seeking to extend the current term of the OA for an additional ten years (to the end of 2034) to allow for the continuation of Imperial’s operations at the Norman Wells Operations.
Hearing Order number: OH-001-2023
REGDOCS File Number: [Filing C27037]
Panel of Commissioners: S. Luciuk (Presiding), M. Watton, K. Penney, S. Sajnovics
Imperial Oil Resources N.W.T. Limited – Application for Line 490 Corridor Replacement Activities - Norman Wells Operations - Authorization OA-1210-001
Section: Section 5 Canada Oil and Gas Operations Act
Background: Imperial is requesting approval to conduct pipeline replacement of five lines between Goose and Bear Islands using horizontal directional drilling as the construction method. The replacement activities include drilling a single hole between Goose and Bear Islands, approximately 610 to 762 millimetres in diameter (24 to 30 inches) and approximately 1.0 to 1.5 km in length. The span of the single bore hole, which is located beneath the Mackenzie River, is approximately 0.6 km at the drill location between the two islands.
Hearing Order number: OH-001-2023
REGDOCS File Number : [Filing C28320]
Panel of Commissioners: S. Luciuk (Presiding), M. Watton, K. Penney, S. Sajnovics
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