Judgment of the Court
The judgment of the Court was delivered by
In this Act,
. . .
"export" means, with reference to
(a) electricity, to send from Canada by a line of wire or other conductor electricity produced in Canada,
. . .
22. (1) An appeal lies from a decision or order of the Board to the Federal Court of Appeal on a question of law or of jurisdiction, after leave to appeal is obtained from that Court.
24. (1). . . hearings before the Board with respect to the issuance, revocation or suspension of certificates or of licences for the exportation of gas or electricity or the importation of gas or for leave to abandon the operation of a pipeline shall be public.
119.02 No person shall export any electricity except under and in accordance with a permit issued under section 119.03 or a licence issued under section 119.08.
119.03 (1) Except in the case of an application designated by order of the Governor in Council under section 119.07, the Board shall, on application to it and without holding a public hearing, issue a permit authorizing the exportation of electricity.
(2) The application must be accompanied by the information that under the regulations is to be furnished in connection with the application.
119.06 (1) The Board may make a recommendation to the Minister, which it shall make public, that an application for exportation of electricity be designated by order of the Governor in Council under section 119.07, and may delay issuing a permit during such period as is necessary for the purpose of making such an order.
(2) In determining whether to make a recommendation, the Board shall seek to avoid the duplication of measures taken in respect of the exportation by the applicant and the government of the province from which the electricity is exported, and shall have regard to all considerations that appear to it to be relevant, including
. . .
(b) the impact of the exportation on the environment;
. . .
(d) such considerations as may be specified in the regulations.
119.07 (1) The Governor in Council may make orders
(a) designating an application for exportation of electricity as an application in respect of which section 119.08 applies; and
(b) revoking any permit issued in respect of the exportation.
. . .
(3) Where an order is made under subsection (1),
(a) no permit shall be issued in respect of the application; and
(b) any application in respect of the exportation shall be dealt with as an application for a licence.
119.08 (1) The Board may, subject to section 24 and to the approval of the Governor in Council, issue a licence for the exportation of electricity in relation to which an order made under section 119.07 is in force.
(2) In deciding whether to issue a licence, the Board shall have regard to all considerations that appear to it to be relevant.
119.09 (1) The Board may, on the issuance of a permit, make the permit subject to such terms and conditions respecting the matters prescribed by the regulations as the Board considers necessary or desirable in the public interest.
(2) The Board may, on the issuance of a licence, make the licence subject to such terms and conditions as the Board may impose.
119.093 (1) The Board may revoke or suspend a permit or licence issued in respect of the exportation of electricity
. . .
(b) where a holder of the permit or licence has contravened or failed to comply with a term or condition of the permit or licence.
National Energy Board Part VI Regulations, C.R.C. 1978, c. 1056:
6. (1) Every applicant for a licence for the exportation of power shall furnish to the Board such information as the Board may require.
(2) Without restricting the generality of subsection (1), the information required to be furnished by any applicant described in subsection (1) shall, unless otherwise authorized by the Board, include
. . .
(y) evidence that the applicant has obtained any licence, permit or other form of approval required under any law of Canada or a province respecting the electric power proposed to be exported;
(z) evidence to demonstrate that the price to be charged by the applicant for electric power and energy exported by him is just and reasonable in relation to the public interest, and in particular that the export price
(i) would recover its appropriate share of the costs incurred in Canada,
(ii) would not be less than the price to Canadians for equivalent service in related areas, and
(iii) would not result in prices in the country to which the power is exported being materially less than the least cost alternative for power and energy at the same location within that country; and
(aa) evidence on any environmental impact that would result
from the generation of the power for export.
15. Every licence for the export of electric power and energy is subject to such terms and conditions as the Board may prescribe and, without restricting the generality of the foregoing, is subject to every statement set out by the Board in the licence respecting
. . .
(m) the requirements for environmental protection.
Environmental Assessment and Review Process Guidelines Order, SOR/84-467:
2. In these Guidelines,
. . .
"proposal" includes any initiative, undertaking or activity for which the Government of Canada has a decision making responsibility.
The Process shall be a self assessment process under which the initiating department shall, as early in the planning process as possible and before irrevocable decisions are taken, ensure that the environmental implications of all proposals for which it is the decision making authority are fully considered and where the implications are significant, refer the proposal to the Minister for public review by a Panel.
(1) An initiating department shall include in its consideration of a proposal pursuant to section 3
(a) the potential environmental effects of the proposal and the social effects directly related to those environmental effects, including any effects that are external to Canadian territory; and
(b) the concerns of the public regarding the proposal and its potential environmental effects.
(1) Where a proposal is subject to environmental regulation, independently of the Process, duplication in terms of public reviews is to be avoided.
(2) For the purpose of avoiding the duplication referred to in subsection (1), the initiating department shall use a public review under the Process as a planning tool at the earliest stages of development of the proposal rather than as a regulatory mechanism and make the results of the public review available for use in any regulatory deliberations respecting the proposal.
These Guidelines shall apply to any proposal