Canada Energy Regulator to Review Rules of Practice and Procedure

The Commission of the Canada Energy Regulator (CER) has announced that it has begun the process of updating the National Energy Board Rules of Practice and Procedure, 1995 (the Rules) to both align with the Canada Energy Regulator Act (CER Act) and to formalize the practices, processes and terminology which have evolved since the Rules were first put into effect. The CER is the body responsible for conducting written and oral hearings regarding complaints and applications that pertain to the federally regulated oil, gas and electric utility industries. In 2019, the CER replaced the National Energy Board (NEB) after the coming into force of the CER Act. However, the rules and procedures that govern hearings of the Commission of the CER are still the same Rules that governed the NEB, which have not been updated since the year 2000.

This “Rules Review” will take place in four phases, as set out in the Discussion Paper that the CER has provided on its website. In Phase I, beginning this fall, the CER is seeking feedback from stakeholders on potential amendments and areas for improvement. The CER is particularly concerned with interested energy companies and Indigenous Peoples. In an effort to facilitate engagement, up to $300,000 will be made available to support the participation of eligible Indigenous Peoples. Indigenous communities, partners, organizations or representatives with a direct interest in the CER Rules Review can apply to receive a $6,000 grant to assist with providing a written submission by December 9, 2024, to participate. Applications for the grant must be submitted by October 9, 2024.

While stakeholders are welcome to provide feedback on any topic that interests them, the Commission has set out a number of amendments that are currently being considered in its Discussion Paper. To summarize, the Commission of the CER is considering the following:

• implementing a standardized process for deciding compensation and cost apportionment disputes
• ensuring the Rules align with the CER Act’s objectives related to reconciliation and the United Nations Declaration on the Rights of Indigenous Peoples
• creating flexible, fair and meaningful opportunities to gather and protect Indigenous knowledge
• clarifying and formalizing procedural steps regarding the Crown Consultation Coordinator’s involvement in Commission hearings when additional Indigenous consultation is required to supplement the Commission’s own process
• updating the Rules to reflect widely used informal processes that are not currently reflected, including how to apply for hearings under the Canada Oil and Gas Operations Act
• reviewing the current timelines in the Rules, and the processes for notices of motions, fixing costs and information requests
• modernizing the electronic filing and service system to remove the need for hard copies in some cases
• removing the requirements for applicants to have hard copies of project applications on site for public inspection
• modernizing the requirements and processes involved with publishing notices,
• and increasing the accessibility of the Commission processes for persons with disabilities.

To be clear, the above are all subject to change. They are merely topics to be considered at the beginning of a long review process that will be completed by late 2025 at the earliest. The Commission has tentatively set out the following timeline for the Rules Review:

• Phase I (Fall 2024) – Early Engagement – The Commission will gather feedback as described above.
• Phase II (Winter 2025) – Summary Report – A report will be published, summarizing the feedback gathered from Phase I, including how that feedback will be addressed. Written submissions received during Phase I will be published online. Additional feedback will be requested.
• Phase III (Fall 2025) – Canada Gazette I – A draft of the amended Rules will be published in Canada Gazette I for review and comment by interested parties.
• Phase IV (Winter 2025/2026) – Canada Gazette II – The final amended Rules will be published in Canada Gazette II.

While this review process is very much in its initial stages, procedural changes will eventually come to the Commission of the CER’s hearing process. Given the nature of the review process, stakeholders in the energy sector should review their previous and expected dealings with the CER and consider contributing to Phase I feedback. Stakeholders must submit written feedback to the CER electronically or by mail by December 9, 2024.

We will continue to report on the Commission of the CER’s Rules Review as it develops.