National Energy Board Act

WARNING NOTE: Users of this office consolidation are reminded that it is prepared for convenience of reference only and that, as such, it has no official sanction.

PART I - NATIONAL ENERGY BOARD

3. (1) There is hereby established a Board, to be called the National Energy Board, consisting of not more than nine members to be appointed by the Governor in Council.

(2) Subject to subsection (3), each member of the Board shall be appointed to hold office during good behaviour for a period of seven years, but may be removed at any time by the Governor in Council on address of the Senate and House of Commons.

(3) A member appointed pursuant to subsection (2) is eligible to be re-appointed to hold office during good behaviour for any term of seven years or less and every member ceases to hold office on attaining the age of seventy years.

(4) A person is not eligible to be appointed or to continue as a member of the Board if that person is not a Canadian citizen or permanent resident within the meaning of the Immigration Act or is, as owner, shareholder, director, officer, partner or otherwise, engaged in the business of producing, selling, buying, transmitting, exporting, importing or otherwise dealing in hydrocarbons or electricity or holds any bond, debenture or other security of a corporation engaged in any such business.

(5) Each member, other than a member appointed under subsection 4(1), shall, during his term of office,

(a) reside in, or within a reasonable commuting distance of, Calgary, Alberta or at such other place in Canada as the Governor in Council may approve; and

(b) devote the whole of his time to the performance of his duties under this Act, and shall not accept or hold any office or employment inconsistent with his duties and functions under this Act.

4. (1) In addition to the number of members that may be appointed under subsection 3(1), the Governor in Council may, notwithstanding subsection 3(2), appoint temporary members of the Board on such terms and conditions as the Governor in Council may prescribe and any temporary member so appointed shall carry out such duties as may be assigned to that member by the Chairman of the Board.

(2) Not more than six temporary members of the Board shall hold office at any one time.

(3) A member appointed under subsection (1) shall not, during his term of office, accept or hold any office or employment inconsistent with the member's duties under this Act.

R.S., 1985, c. N-6, s. 3; 1980-81-82-83, c. 84, s. 1, c. 116, s. 2; 1984, c. 40, s. 48.

5. (1) Each member, other than a member appointed under subsection 4(1), shall be paid such remuneration for the services of that member as the Governor in Council may from time to time determine.

(2) Each member appointed under subsection 4(1) shall be paid such remuneration for the services of that member as the Governor in Council may from time to time determine.

(3) Each member is entitled to be paid reasonable travel and other expenses incurred in the performance of his duties while away from his ordinary place of residence.

R.S., 1985, c. N-6, s. 4; R.S., c. 27(1^st Supp.), s. 3; 1980-81-82-83, c. 84, s. 2.

6. (1) The Governor in Council shall designate one of the members to be Chairman of the Board and another of the members to be Vice-Chairman of the Board.

(2) The Chairman is the chief executive officer of the Board, and has supervision over and direction of the work and staff of the Board.

(3) If the Chairman is absent or unable to act or if the office is vacant, the Vice-Chairman has all the powers and functions of the Chairman.

(4) The Board may authorize one or more of its members to act as Chairman for the time being in the event that the Chairman and Vice-Chairman are absent or unable to act or if the offices are vacant.

(3) A vacancy in the membership of the Board does not impair the right of the remaining members to act.

(4) The Board may sit at such times and places as it considers necessary or desirable for the proper conduct of its business.

(a) the sittings of the Board;

(b) the procedure for making applications, representations and complaints to the Board and the conduct of hearings before the Board, and generally the manner of conducting any business before the Board;

(c) the apportionment of the work of the Board among its members, and the assignment of members to sit at hearings and to preside thereat; and

(d) generally, the carrying on of the work of the Board, the management of its internal affairs and the duties of its officers and employees.

9. (1) The Secretary and the other officers and employees necessary for the proper conduct of the business of the Board shall be appointed in the manner authorized by law.

(2) For the purposes of the Public Service Superannuation Act, the members and Secretary of the Board and the officers and employees appointed as provided in subsection (1) shall be deemed to be persons employed in the Public Service.

(3) Subsection (2) does not apply to a member of the Board appointed under subsection 4(1) unless the member was, immediately before being appointed, a person employed or deemed to be employed in the Public Service.

(4) Any officer or employee appointed as provided in subsection (1) may be designated as a regional health and safety officer or as a health and safety officer for the purposes of Part II of the Canada Labour Code.

(5) Where a position in the public service of Canada is transferred to the Board within ninety days after this subsection comes into force, the incumbent of the position continues in the position in the Board and any person so continuing is deemed to have been appointed in accordance with subsection (1).

(6) Notwithstanding subsection (5) and section 28 of the Public Service Employment Act, no person deemed by that subsection to have been appointed is subject to probation, unless that person was subject to probation immediately before the appointment, in which case that person continues to be subject to probation as if the position had not been transferred.

10. The Governor in Council may appoint and fix the remuneration of experts or persons having technical or special knowledge to assist the Board in any matter in an advisory capacity.

(3) The Board has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders, the entry on and inspection of property and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record.

12. (1) The Board has full and exclusive jurisdiction to inquire into, hear and determine any matter

(a) where it appears to the Board that any person has failed to do any act, matter or thing required to be done by this Act or by any regulation, certificate, licence or permit, or any order or direction made by the Board, or that any person has done or is doing any act, matter or thing contrary to or in contravention of this Act, or any such regulation, certificate, licence, permit, order or direction; or

(b) where it appears to the Board that the circumstances may require the Board, in the public interest, to make any order or give any direction, leave, sanction or approval that by law it is authorized to make or give, or with respect to any matter, act or thing that by this Act or any such regulation, certificate, licence, permit, order or direction is prohibited, sanctioned or required to be done.

(1.1) The Board may inquire into any accident involving a pipeline or international power line or other facility the construction or operation of which is regulated by the Board and may, at the conclusion of the inquiry, make

(a) findings as to the cause of the accident or factors contributing to it;

(b) recommendations relating to the prevention of future similar accidents; or

(2) For the purposes of this Act, the Board has full jurisdiction to hear and determine all matters, whether of law or of fact.

(a) order and require any person to do, forthwith, or within or at any specified time and in any manner prescribed by the Board, any act, matter or thing that such person is or may be required to do under this Act, or any regulation, certificate, licence or permit, or any order or direction made or given under this Act; and

(b) forbid the doing or continuing of any act, matter or thing that is contrary to this Act or any such regulation, certificate, licence, permit, order or direction.

14. The Board may delegate to one or more of its members, either jointly or severally, all or any of its powers, duties and functions under this Act, except those under subsection 45(3), section 46, 47, 48, 52, 54, 56, 58, 58.11, 58.14, 58.16, 58.32, 58.35, 58.37 or 129 or under Part IV, VI or VII.

15. (1) The Board or the Chairman may authorize one or more of its members to report to the Board on any question or matter arising in connection with the business of or any application or proceeding before the Board, and the member so authorized has all the powers of the Board for the purpose of taking evidence or acquiring the necessary information for the purpose of making the report and the recommendations contained in it as to the decision or order of the Board to be made on the question or matter.

(1.1) Notwithstanding subsection 7(2) of this Act and paragraph 22(2)(a) of the Interpretation Act, three or more members authorized to report to the Board pursuant to subsection (1) do not constitute a quorum of the Board.

(2) When a report is made to the Board under subsection (1), it may be adopted as the decision or order of the Board or otherwise dealt with as the Board considers advisable.

(3) The Board may of its own motion inquire into, hear and determine any matter or thing that under this Act it may inquire into, hear and determine.

16. (1) Where a member who is conducting a hearing pursuant to a delegation under section 14 or an authorization under section 15 becomes incapacitated or dies during the hearing or after the conclusion of the hearing but before giving a decision or report, the Board, with the consent of all the parties to the hearing, may

(a) delegate or authorize another member to continue the hearing and make a decision or report with respect thereto, if the incapacity or death occurs during the hearing; or

(b) delegate or authorize another member to examine all the evidence presented at the hearing and make a decision or report based on the evidence, if the incapacity or death occurs after the conclusion of the hearing but before a decision or report is given with respect thereto.

(2) Where a hearing is being conducted by three members and one member becomes incapacitated or dies during the hearing or after the conclusion thereof but before a decision is given,

(a) the Board may appoint and authorize another member to replace the incapacitated or deceased member for the rest of the hearing and to participate in the decision, if the incapacity or death occurs during the hearing; or

(b) if the incapacity or death occurs after the conclusion of the hearing but before a decision is given, the remaining members may, if unanimous, give a decision as if the incapacitated or deceased member were present and participating in the decision.

(3) A person who resigns or otherwise ceases to hold office as a member may, where authorized to do so by the Governor in Council and on such terms and conditions as the Governor in Council prescribes, continue to inquire into, hear and determine any proceeding to which that person was assigned while that person was a member and the person shall for that purpose be deemed to continue to be a member.

16.1 In any proceedings under this Act, the Board may take any measures and make any order that it considers necessary to ensure the confidentiality of any information likely to be disclosed in the proceedings if the Board is satisfied that

(a) disclosure of the information could reasonably be expected to result in a material loss or gain to a person directly affected by the proceedings, or could reasonably be expected to prejudice the person's competitive position; or

(b) the information is financial, commercial, scientific or technical information that is confidential information supplied to the Board and

(i) the information has been consistently treated as confidential information by a person directly affected by the proceedings, and

(ii) the Board considers that the person's interest in confidentiality outweighs the public interest in disclosure of the proceedings.

16.2 In respect of any order, or in any proceedings, of the Board under this Act, the Board may take any measures and make any order that the Board considers necessary to ensure the confidentiality of information that is contained in the order or is likely to be disclosed in the proceedings if the Board is satisfied that

(a) there is a real and substantial risk that disclosure of the information will impair the security of pipelines, international power lines, buildings, structures or systems, including computer or communication systems, or methods employed to protect them; and

(b) the need to prevent disclosure of the information outweighs the public interest in disclosure of orders and proceedings of the Board.

17. (1) Any decision or order made by the Board may, for the purpose of enforcement thereof, be made a rule, order or decree of the Federal Court or of a superior court of a province and shall be enforced in like manner as a rule, order or decree of that court.

(2) To make a decision or order of the Board a rule, order or decree of the Federal Court or a superior court, the usual practice and procedure of the court in such matters may be followed, or in lieu thereof the Secretary may produce to the court a certified copy of the decision or order under the seal of the Board and thereupon the decision or order becomes a rule, order or decree of the court.

18. Where under this Act the Board may make or issue any order or direction or prescribe any terms or conditions or do any other thing in relation to any person, the Board may do so, either generally or in any particular case or class of cases.

19. (1) Without limiting the generality of any provision of this Act that authorizes the Board to impose terms and conditions in respect of a certificate, licence or order issued by the Board, the Board may direct in any certificate, licence or order that it or any portion or provision thereof shall come into force at a future time or on the happening of any contingency, event or condition specified in the certificate, licence or order or on the performance to the satisfaction of the Board of any conditions that the Board may impose in the certificate, licence or order, and the Board may direct that the whole or any portion of the certificate, licence or order shall have force for a limited time or until the happening of a specified event.

(2) The Board may, instead of making an order final in the first instance, make an interim order, and may reserve its decision pending further proceedings in connection with any matter.

20. On any application made to the Board, the Board may make a decision or order granting the whole or part only of the application, or may grant such further or other related relief, in addition to or in lieu of that applied for, as to the Board may seem just and proper, to the same extent as if the application had been for such partial or related relief.

21. (1) Subject to subsection (2), the Board may review, vary or rescind any decision or order made by it or rehear any application before deciding it.

(2) The Board may vary a certificate, licence or permit but the variation of a certificate or licence is not effective until approved by the Governor in Council.

(a) a decision, operating licence or authorization to which section 28.2 or 28.3 applies; or

(b) an approval of a development plan under section 5.1 of the Canada Oil and Gas Operations Act.

21.1 (1) A transfer of a certificate or licence is not effective until authorized by the Board, with the approval of the Governor in Council.

(2) The Board may, in authorizing the transfer of a certificate or licence, impose, in addition to or in lieu of any terms and conditions to which the certificate or licence was previously subject, such further or other terms and conditions as the Board considers necessary or desirable in order to give effect to the purposes and provisions of this Act.

(2) The Board may, in authorizing the transfer of a permit, impose, in addition to or in lieu of any terms and conditions to which the permit was previously subject, such further or other terms and conditions respecting the matters prescribed by the regulations as the Board considers necessary or desirable in order to give effect to the purposes and provisions of this Act.

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.

(1.1) An application for leave to appeal must be made within thirty days after the release of the decision or order sought to be appealed from or within such further time as a judge of that Court under special circumstances allows.

(2) No appeal lies after leave has been obtained under subsection (1) unless it is entered in the Federal Court of Appeal within sixty days from the making of the order granting leave to appeal.

(3) The Board is entitled to be heard by counsel or otherwise on the argument of an appeal.

23. (1) Except as provided in this Act, every decision or order of the Board is final and conclusive.

(2) Any minute or other record of the Board or any document issued by the Board, in the form of a decision or order, shall for the purposes of this section be deemed to be a decision or order of the Board.

24. (1) Subject to subsection (2), 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.

(2) A public hearing need not be held where the Board, on the application or with the consent of the holder, revokes or suspends

(a) a licence;

(b) a certificate issued in respect of an international or interprovincial power line, regardless of whether the power line has been brought into commercial operation under that certificate; or

(c) a certificate issued in respect of a pipeline, if the pipeline has not been brought into commercial operation under that certificate.

(3) The Board may hold a public hearing in respect of any other matter if it considers it advisable to do so.

24.1 (1) Subject to the approval of the Treasury Board, the National Energy Board may, for the purposes of recovering all or a portion of such costs as the National Energy Board determines to be attributable to its responsibilities under this or any other Act of Parliament, make regulations

(a) imposing fees, levies or charges \ on any person or company authorized under this Act to

(i) construct or operate a pipeline or an international or interprovincial power line,

(ii) charge tolls,

(iii) export or import oil or gas, or

(iv) export electricity; and

(b) providing for the manner of calculating the fees, levies and charges in respect of the person or company and their payment to the National Energy Board.

(2) A regulation made under subsection (1) may specify the rate of interest or the manner of calculating the rate of interest payable by a person or company on any fee, levy or charge not paid by the person or company on or before the date it is due and the time from which interest is payable.

(3) Fees, levies or charges imposed under this section and any interest payable on them constitute a debt to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.

(a) any document purporting to be certified by the Secretary, or by any other person authorized by the Board to certify documents for the purposes of this section, and sealed with the seal of the Board to be a true copy of any minute, decision, licence, certificate, permit, order, instruction, book of reference, book entry, plan, drawing or other document or any part thereof, is, without proof of the signature of the Secretary or other person, evidence of the original document of which it purports to be a copy, and that the document was made, given, issued or deposited at the time stated in the certification, if a time is stated therein, and is signed, certified, attested or executed by the persons by whom and in the manner in which the document purports to be signed, certified, attested or executed as shown or appearing from the certified copy; and

(b) a document purporting to be certified by the Secretary, or by any other person authorized by the Board to certify documents for the purposes of this section, and sealed with the seal of the Board stating that a valid and subsisting document of authorization under this Act has or has not been issued by the Board to a person or persons named in the certified document, is evidence of the facts therein stated, without proof of the signature or official character of the person appearing to have signed the document and without further proof thereof.