Borden Ladner Gervais LLP advisor tackles northern pipeline regulation
Neil McCrank talks about the much ballyhooed Mackenzie Gas Project and whether it will ever see the light of day
A regulatory agency best does its job of making timely decisions on whether projects are economic, safe and environmentally sound if larger community and political matters are settled first. The hardest issues are whether development should be allowed at all, and defining off-limits areas. The regulator, like a law court, focuses tightly on people and features those directly and adversely affected by cases such as pipeline locations and safety precautions. Land use planning taps into wider community and environmental concerns such as preserving aboriginal sacred sites, natural areas or traditional hunting regions against all intrusions.
McCrank predicts that if northern authorities complete zoning and conservation plans promised by land claim settlements, an effective regulatory system can be set up. He is echoed by the NWT Chamber of Commerce, NWT and Nunavut Chamber of Mines and NWT Construction Association. They put completing land use plans at the top of a unanimous, 13-point wish list.
McCrank’s report laid out two potential blueprints for overhauling the NWT apparatus of 17 regional regulatory authorities. The maze is poised to add up to eight more agencies under three claims still under negotiation with Dene and Métis communities.
McCrank’s first option is simple. Turn decision-making power over to a single native agency with “quasi-judicial” or law court-like power and give it authority to make final decisions. As a side benefit, this approach would eliminate constant confusion owed to the federal cabinet’s continuing reservation of rights to interfere by reversing any of the northern authorities’ actions.
His second option is more complicated but easier on the status quo. Preserve the current separate community boards as administrative offices, reviewing industrial plans and making recommendations to his proposed single NWT regulatory tribunal. The local authorities would not have quasi-judicial powers, and Ottawa would recognize the central aboriginal agency as “final recommender” of project approvals and conditions.
To co-ordinate the process, McCrank suggested creating a northern counterpart to Ottawa’s two-year-old steersman agency for industrial schemes in the rest of Canada, the Major Projects Management Office, known as MPMO for short.
His options both emphasize capacity, meaning training judge-like agency members and their technical staff up to professional levels. McCrank, who also advises governments on appointment procedures, says he doubts there is enough specialized talent in all of Canada to staff 17 or more regulatory agencies.
The time is ripe for reform. Northern communities and industry alike are rife with warnings that the stalled $16-billion Mackenzie Gas Project is only the worst example of regulatory delays.
But a NWT government response to McCrank’s report makes it plain that champions of change are battling official inertia. A 36-page statement insists, “Extensive restructuring is not required.” Instead, there should be “targeted changes… to ensure the system operates as intended.”
More study and talk is urged. “Regulatory improvement is an ongoing process. The details of the approach may evolve over time in response to additional research, changing conditions and engagement with the federal government, aboriginal governments and stakeholders.”
Creation of a northern MPMO is the only proposal by McCrank that the territorial government is prepared to entertain. There could be “consent to the exploration of the concept to the extent that it is tailored to northern needs.”
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