Frequently Asked Questions – Trans Mountain Expansion Project Reconsideration Report

  1. What is the NEB recommending in its Reconsideration Report?
  2. What are the significant adverse effects?
  3. Why are the significant adverse effects justified?
  4. What are the next steps?
  5. When can the company re-start construction?
  6. Why did this hearing follow this timeline?
  7. Was the process fair?
  8. What did the NEB consider in this reconsideration hearing?
  9. How many conditions are required for the Project?
  10. How would the recommendations be incorporated?
  11. How does this reconsideration report relate to/impact the Government of Canada’s ongoing consultation with Indigenous peoples?
  12. How were Indigenous peoples involved in the reconsideration hearing?
  13. Why were marine impacts not included in the scope of the NEB’s initial assessment?
  14. Explain the NEB’s decision to include Project-related marine shipping between the Westridge Marine Terminal and the “12-nautical-mile territorial sea limit” as part of the designated project?

1. What is the NEB recommending in its Reconsideration Report?

In its Reconsideration Report, the National Energy Board’s (NEB) overall recommendation is that the Government of Canada approve the Trans Mountain Expansion Project (Project), subject to 156 conditions. The NEB has also made 16 recommendations to the Government of Canada. 

Under the National Energy Board Act , the NEB is of the view that the Project is in the Canadian public interest. Under the Canadian Environmental Assessment Act, 2012 , the NEB is of the view the Project is likely to cause significant adverse environmental effects and recommends the Government of Canada find that they can be justified in the circumstances.

2. What are the significant adverse effects?

The NEB identified that Project-related marine shipping is likely to cause significant adverse environmental effects on the Southern resident killer whale and on Indigenous cultural use associated with the Southern resident killer whale.  The Board also identified that greenhouse gas emissions from Project-related marine vessels are likely to be significant.  Lastly, while a credible worst-case spill from the Project or a Project-related vessel is not likely, if it were to occur, the environmental effects would be significant.

3. Why are the significant adverse effects justified?

The NEB recommends that, in light of the considerable benefits of the Project and measures to mitigate the effects, the Government of Canada find that the likely significant adverse effects can be justified in the circumstances.

The benefits of the Project include increased access to diverse markets for Canadian oil; jobs created across Canada; the development of capacity of local and Indigenous individuals, communities, and businesses; direct spending on pipeline materials in Canada; and considerable revenues to various levels of government.

4. What are the next steps?

The NEB’s Reconsideration Report has now been submitted to the Government of Canada. The report is one of the factors that the Government of Canada will consider when making the final decision on whether or not the Project should proceed.

5. When can the company re-start construction?

Construction can only re-start if the Government of Canada approves the Project and instructs the NEB to issue a certificate under the National Energy Board Act authorizing its construction and operation. Should the Project be approved, the NEB will regulate it throughout its full lifecycle. The NEB will oversee Project construction and operation, and will hold Trans Mountain accountable for meeting its commitments and applicable regulatory requirements (including the 156 conditions), keeping its pipelines and facilities safe and secure, and protecting people, property, and the environment.

6. Why did this hearing follow this timeline?

On September 26, 2018, the NEB announced that it would hold a public hearing to carry out the Reconsideration as directed by the Government of Canada [Filing A94111]. The NEB was given 155 days to complete the Reconsideration.  The Reconsideration was focused on Project-related marine shipping – a relatively narrow scope to the original NEB hearing for the Project.

7. Was the process fair?

Yes, the NEB is of the view that the Reconsideration hearing offered a fair and meaningful opportunity for Parties to participate and to fully present their case and represent their diverse points of view. This included an opportunity to comment on the scope of the environmental assessment and the design of the hearing process, file evidence, present Indigenous oral traditional evidence, question the evidence of other parties, comment on the draft conditions and recommendations, and present final argument.

8. What did the NEB consider in this reconsideration hearing?

As per the direction provided by the Government of Canada, the Reconsideration took into account the environmental effects of Project-related marine shipping in view of the requirements of the Canadian Environmental Assessment Act, 2012, and the adverse effects of Project-related marine shipping on species at risk in view of any requirements of the Species at Risk Act.

9. How many conditions are required for the Project?

If approved, the Project would be subject to 156 conditions. Of the original 157 conditions, the NEB converted one into a recommendation to the Government of Canada, and revised six other conditions. The NEB made a total of 16 new recommendations to the Government of Canada.

10. How would the recommendations be incorporated?

The NEB has made 16 recommendations to the Government of Canada related to Project-related marine shipping. The recommendations fall outside of the Board’s regulatory mandate and are generally beyond the control of Trans Mountain to implement. The Government of Canada will consider the NEB’s recommendations and will decide whether to implement them and, if so, how.

11. How does this reconsideration report relate to/impact the Government of Canada’s ongoing consultation with Indigenous peoples?

The NEB’s Reconsideration forms part of the overall consultation process with Indigenous peoples with respect to their constitutionally protected rights. The NEB’s Reconsideration may also inform the additional “Phase III” consultations being carried out separately by the Government of Canada with respect to the Project. The NEB considered those aspects of consultation which are relevant to the Reconsideration and for which evidence was filed on the record.

12. How were Indigenous peoples involved in the reconsideration hearing?

There were 52 Indigenous intervenors in the Reconsideration hearing, out of a total of 118 intervenors. Understanding that Indigenous peoples have an oral tradition for sharing knowledge and that this information cannot always be shared adequately or appropriately in writing, the NEB extended an invitation to all Indigenous intervenors to provide oral traditional evidence (OTE). This offer was in addition to the opportunities for intervenors to participate in all written steps of the hearing, which included filing evidence, making information requests, and presenting argument. OTE of Indigenous intervenors was heard in sessions held over approximately three weeks in Calgary, AB and Victoria and Nanaimo, B.C.

13. Why were marine impacts not included in the scope of the NEB’s initial assessment?

Project-related marine shipping was considered in the NEB’s initial regulatory review and report, but only under the National Energy Board Act – not under the Canadian Environmental Assessment Act, 2012. On August 30, 2018, the Federal Court of Appeal set aside the Project approval in part because, in the Court’s view, the NEB unjustifiably excluded Project-related marine shipping from the scope of the “designated project” reviewed under the Canadian Environmental Assessment Act, 2012.

14. Explain the NEB’s decision to include Project-related marine shipping between the Westridge Marine Terminal and the “12-nautical-mile territorial sea limit” as part of the designated project?

On September 26, 2018, the NEB sought comments on whether Project-related marine shipping should be included in the “designated project” to be assessed under the Canadian Environmental Assessment Act, 2012 . The NEB then sought further comments on the limited issue of whether the “designated project” should extend to Canada’s territorial sea limit (12–nautical-miles) or to Canada’s exclusive economic zone (200–nautical-miles).

The NEB decided, on a principled basis, to include Project-related marine shipping between the Westridge Marine Terminal and the 12-nautical-mile territorial sea limit in the “designated project”. Reasons for this decision can be found here: [Document A6J4X5]

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