On Wednesday, Aug. 28, the National Energy Board (NEB) became the Canada Energy Regulator (CER). For further information please visit our Implementing the Canadian Energy Regulator Act information page

NEB releases draft conditions and recommendations for Trans Mountain Expansion Project reconsideration

10 January 2019

The National Energy Board (NEB) today released its draft conditions and Federal Government recommendations [Filing A97236] relating to its ongoing Trans Mountain Expansion Project reconsideration hearing.

Releasing draft conditions while a hearing is ongoing is a regular process step for the NEB, and is not an indication of the Board’s forthcoming reconsideration report to the Federal Government to either recommend approval or denial of the Project application.

According to the National Energy Board Act, the Board must set out all the terms and conditions that it considers necessary or desirable in the public interest, should the Project be approved by the Federal Government. The purpose of conditions is to mitigate potential risks and effects associated with a project to protect the public and the environment. Conditions outline requirements that a company must meet in relation to a project.

The draft conditions that are the focus of this reconsideration are intended to reduce or eliminate the effects of Project-related marine shipping. However, the remaining conditions from the Board’s 2016 Recommendation Report would still apply to the overall project.

In this reconsideration, the NEB also intends to issue recommendations to the Federal Government for measures to mitigate, avoid, or lessen the effects of Project-related marine shipping that are within the authority of the Federal Government, but beyond the scope of the Board’s regulatory authority. This is consistent with the direction of the Court of Appeal in Tsleil-Waututh Nation v. Canada (Attorney General), which overturned the Project’s approval on August 30, 2018.

Parties may make comments and suggestions about the draft conditions and Federal Government recommendations in their written argument, and may also suggest any additional conditions and Federal Government recommendations for the Board’s consideration. Any suggestion should include a justification to assist the Board in assessing its merits.

As these conditions and Federal Government recommendations are drafts, any of them may be deleted or modified before the NEB’s final report is submitted prior to the February 22, 2019 deadline imposed by the Federal Government.

Trans Mountain and all Federal departments and agencies involved in the hearing now have until January 17, 2019 to file written argument. All other intervenors in the hearing have until January 22, 2019.

On September 20, 2018, the Government of Canada referred aspects of the NEB’s May 2016 Recommendation report [Filing A77045] – related to the application of the Canadian Environmental Assessment Act, 2012 and the Species at Risk Act to Project-related marine shipping – back to the NEB for reconsideration [Filing A94111].

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