Earlier this morning, the National Energy Board ("NEB") delivered its Reconsideration report to the federal government, ultimately recommending that the Trans Mountain Expansion Project ("TMX" or the "Project") should be approved in the public interest of Canadians. The NEB found that the potential effects from the Project can be justified in light of the considerable benefits flowing from the Project and the measures to minimize the effects. The NEB has recommended approval contingent on 156 conditions, plus 16 new recommendations based on its review of potential effects to the marine environment.

The NEB's decision now starts the clock on a 90-day deadline for Cabinet to make a decision on whether the Project should proceed. However, a final decision will not be made until additional consultations with potentially impacted Indigenous groups are complete, meaning that the 90-day timeline will likely be extended.

Reconsideration Hearing and Report

The future of TMX has been uncertain as the federal government has attempted to comply with the requirements regarding Indigenous consultation and consideration of the potential adverse environmental impacts of additional tanker traffic to the marine environment as set out by the Federal Court of Appeal.

In September, 2018, the NEB was directed by the Federal Court of Appeal to reconsider those aspects of its recommendation report related to marine shipping and in particular, the potential effects to the southern resident killer whales. Former Supreme Court of Canada Justice Iacobucci was appointed to oversee a new round of consultation with Indigenous communities.

The NEB was given 155 days to complete its reconsideration. The Reconsideration hearing provided an opportunity for various potentially impacted and interested groups, including 52 Indigenous groups and individuals, and 8 federal government departments, to comment on the scope of the environmental assessment and the design of the hearing process, file evidence, present traditional Indigenous oral evidence, and comment on the draft conditions and recommendations.

Flowing from the hearing, the NEB delivered its Reconsideration report, which specifically examined the impacts of Project-related marine shipping under the application of the Canadian Environmental Assessment Act, 2012 and the Species at Risk Act ("SARA"), in accordance with the federal government's aforementioned direction to the NEB.

16 New Recommendations

If the Project is approved by the federal government, the Project must comply with the 156 conditions originally set out by the NEB. In addition, the NEB has made 16 new recommendations to the federal government related to Project-related marine shipping. The recommendations are designed to offset potential effects to marine life and include:

  • cumulative effects management for the Salish Sea,
  • measures to offset increased underwater noise and increased strike risk posed to SARA-listed marine mammal and fish species,
  • marine oil spill response,
  • marine shipping and small vessel safety,
  • reduction of GHG emissions from marine vessels, and
  • engaging the Indigenous Advisory and Monitoring Committee for their feedback on the marine safety system and identifying engagement opportunities for Project-related marine shipping activities that intersect with Canadian Coast Guard operational programs.

First Nations and environmental groups have already responded to the NEB's announcement by indicating that additional legal challenges will be launched and delays can be expected.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.