On October 12, 2018, the National Energy Board (NEB) issued a Hearing Order for Reconsideration of aspects of its Recommendation Report for the Trans Mountain Expansion Project. This order is a result of the Governor in Council’s (GIC) referral of specific aspects of the NEB’s Report for the Project back to the Board for reconsideration following a Federal Court of Appeal decision that quashed the GIC’s approval of the Project.
The NEB will hold a public hearing for this Reconsideration and during the hearing the Board will receive written evidence and other filings from Intervenors, which will be available in the Board’s online public registry. The hearing may also include oral portions and the Board will use various ways to gather and test evidence and will review and consider all of the evidence on the record in completing its Reconsideration Report. They will rely only on the evidence on the record and this includes relevant evidence previously submitted as part of the Application Hearing for the Project and any new relevant evidence filed.
The Board must complete the Reconsideration hearing and submit its Reconsideration Report to the GIC no later than February 22, 2019.
The Reconsideration hearing will consider any necessary changes or additions to its May 2016 Recommendation Report, in light of the inclusion of Project-related marine shipping between the Westridge Marine Terminal and the 12-nautical-mile territorial sea limit in the “designated project” under the Canadian Environmental Assessment Act, 2012 (CEAA 2012). The issues the board will consider in the hearing are:
- The environmental effects of Project-related marine shipping and the significance of these effects. This includes adverse effects on species at risk, the environmental effects of malfunctions or accidents that may occur, and any cumulative environmental effects.
- Measures that are technically and economically feasible, and that would mitigate any significant adverse environmental effects of Project-related marine shipping. Given the Board found four significant adverse effects related to Project-related marine shipping in its previous assessment (i.e., greenhouse gas emissions, Southern resident killer whale, traditional Indigenous use associated with Southern resident killer whale, and the potential effects of a large or credible worst-case spill), the consideration of mitigation measures will include these four matters. This issue will also include consideration of whether the mitigation measures will change the Board’s previous significance findings.
- Alternative means of carrying out Project-related marine shipping that are technically and economically feasible, and the environmental effects of such alternative means.
- Requirements of any follow-up program in respect of Project-related marine shipping.
- Measures to avoid or lessen the adverse effects of Project-related marine shipping on SARA-listed wildlife species and their critical habitat, monitoring of the measures, and consideration of how to ensure the measures and monitoring are undertaken. The Board’s previous assessment identified the SARA-listed marine fish, marine mammal, and marine bird species that could be found in the area of, or affected by, Project-related marine shipping. Consideration will also be given to any species that have been newly listed or have seen a change to their designation since the issuance of the Board’s Report and that could be affected by Project-related marine shipping.
- The potential impacts of Project-related marine shipping on Indigenous interests.
- Whether there should be any changes or additions to the Board’s recommendations set out in its Report, or to the recommended terms or conditions, including Conditions 91, 131 to 134, 144, and 151.
Additionally, an Amended Factors and Scope of the Factors for the Environmental Assessment under the Canadian Environmental Assessment Act, 2012 (CEAA 2012) can be found in Appendix 2 of the Hearing Order.
Hearing events and steps
October 23, 2018
- Indigenous intervenors notify the Board of their intent to provide new or supplemental oral traditional evidence
October 31, 2018
- Trans Mountain files opening statement and direct evidence
- Federal Departments and Agencies file opening statements, direct evidence, and information requested by the Board under paragraph 20(a) of the CEAA 2012
November 20, 2018
- Intervenors (other than Federal Departments and Agencies) file opening statement and direct evidence
- Members of the public file letters of comment
November 26, 2018
- Trans Mountain files reply evidence
December 3, 2018
- All Parties file information requests regarding other Parties’ evidence
Late-November or early-December
- Oral hearing session: to collect, and allow questioning of, oral Indigenous traditional evidence
December 13, 2018
- All Parties respond to information requests asked of them
December 17, 2018
- Motion Day – As considered necessary, Parties file notices of motion on the adequacy of other Parties’ responses to their own information requests (“motions to compel”)
January 9, 2019
- All Parties file affidavits adopting their written evidence
- Trans Mountain and Federal Departments and Agencies file written argument-in-chief, including comments on draft conditions (which the Board will release for comment)
January 14, 2019
- Intervenors (other than Federal Departments and Agencies) file written argument-in-chief, including comments on draft conditions and any reply argument to Trans Mountain and Federal Departments and Agencies.
Mid-January
- Optional oral hearing session: to hear all Parties’ oral summary argument and/or reply argument
To access valuable information about the Reconsideration hearing please visit the NEB’s dedicated Reconsideration webpage.
