Introduction and Disposition (an excerpt from the Reconsideration Report)
This introduction contains the National Energy Board’s (Board or NEB) overall conclusions and recommendations with respect to the Trans Mountain Expansion Project (Project). It also sets the context for how the Board approached the Reconsideration it was directed to undertake by the Governor in Council (GIC), and contains remarks on some of the multifaceted considerations that informed the Board’s conclusions. This includes details regarding the holistic, systemic and precautionary approach that the Board took to examining and addressing effects likely to be caused by the Project on the Salish Sea and its complex and interconnected ecosystem. This introduction should be read together with – and not in isolation from – the detailed reasons that follow in the subsequent chapters of this report.
After completing the Reconsideration hearing and having regard to all relevant considerations, the Board is of the view that the Project is and will be required by the present and future public convenience and necessity, and is in the Canadian public interest. Pursuant to the National Energy Board Act (NEB Act), the Board confirms the recommendation, and replaces certain conditions, that it provided to the GIC in its OH-001-2014 Report. The Board recommends that the GIC approve the Project by directing the issuance of a certificate of public convenience and necessity (CPCN) to Trans Mountain Pipeline ULC (Trans Mountain), subject to 156 conditions.
Pursuant to the Canadian Environmental Assessment Act, 2012 (CEAA 2012) the Board is of the view that the designated Project is likely to cause significant adverse environmental effects. Specifically, 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. This is despite the fact that effects from Project-related marine shipping will be a small fraction of the total cumulative effects, and the level of marine traffic is expected to increase regardless of whether the Project is approved. The Board also finds that greenhouse gas emissions from Project-related marine vessels would result in measureable increases and, taking a precautionary approach, are likely to be significant. 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. While these effects weighed heavily in the Board’s reconsideration of Project-related marine shipping, the Board recommends that, in light of the considerable benefits of the Project and measures to mitigate the effects, the GIC find that they can be justified in the circumstances. The Board has identified a recommended follow-up program to be implemented with respect to the designated Project.
Pursuant to the Species at Risk Act (SARA), the Board has identified the adverse effects of the Project and its related marine shipping on each SARA-listed wildlife species and its critical habitat, and has imposed (through conditions) and recommended (to the GIC) measures to avoid or lessen those effects and to monitor them.
Reconsideration background and process
If approved, the Project would expand the existing Trans Mountain Pipeline system between Edmonton, Alberta and Burnaby, British Columbia (B.C.), nearly tripling its capacity to ship oil from 300,000 to 890,000 barrels per day. Almost 90 per cent of the Project route parallels existing disturbance, including the right-of-way for the existing pipeline. The Project includes approximately 987 kilometres of new pipeline, new and modified facilities such as pump stations and tanks, and the reactivation of 193 kilometres of existing pipeline. The Westridge Marine Terminal (WMT) would also be expanded. Oil would be loaded onto tankers at the WMT for transit to Washington State, California, and Asia.
In May 2016, after an approximately two-year regulatory review (the OH-001-2014 hearing), the Board issued its OH-001-2014 Report recommending that the GIC approve the Project. Project-related marine shipping was considered as part of that review and report, but only under the NEB Act – not under the CEAA 2012. On 29 November 2016, the GIC approved the Project, issuing Order in Council (OIC) P.C. 2016-1069. Accordingly, on 1 December 2016, the Board issued CPCN OC-064 to Trans Mountain, along with amendments to other existing CPCNs. Additional related instruments in respect of the Project also came into effect at that time. These regulatory instruments authorized the construction and operation of the Project, subject to 157 conditions.
On 30 August 2018, the Federal Court of Appeal in Tsleil-Waututh Nation v. Canada (Attorney General) set aside OIC P.C. 2016-1069, in part because, in the Court’s view, the Board unjustifiably excluded Project-related marine shipping from the scope of the “designated project” reviewed under the CEAA 2012.
On 20 September 2018, the GIC issued OIC P.C. 2018-1177, directing the Board to conduct a Reconsideration taking into account the environmental effects of Project-related marine shipping in view of the requirements of the CEAA 2012, and the adverse effects of Project-related marine shipping on species at risk in view of any requirements of section 79 of the SARA. The OIC instructed the Board to complete the Reconsideration within 155 days.
In carrying out the Reconsideration, the Board held a public hearing (the MH-052-2018 hearing) and has prepared this MH-052-2018 Report as a result. As directed by the OIC and as reflected in the Board’s List of Issues (see Appendix 1), this Reconsideration is focused on Project-related marine shipping – a comparatively narrow scope to the OH-001-2014 hearing. The Board’s focus was on any necessary changes or additions to its OH-001-2014 Report in light of the inclusion of Project-related marine shipping in the designated Project being assessed under the CEAA 2012.
At the end of this introduction and disposition, there is a roadmap to this MH-052-2018 Report, which explains how it is laid out to incorporate both new information received through the MH-052-2018 hearing, and information received during the OH-001-2014 hearing. The Board has structured this MH-052-2018 Report in this manner to ensure that all pertinent information about the Project and its related marine shipping is captured in a single, consolidated report to the GIC.
Considering the evidence and submissions
While the Reconsideration was a focused hearing, the evidentiary record was nevertheless substantial, and included additional investigative and scientific studies that have been completed since the close of the OH-001-2014 hearing record. The level of participation was also substantial, with a total of 118 intervenors that included 52 Indigenous intervenors, and 8 federal government department intervenors. Any member of the public was able to file a letter of comment, and many took the opportunity to do so.
Prior to issuing a Hearing Order, the Board sought public comments on the scope of the environmental assessment and List of Issues, and the design of the hearing process. Intervenors provided evidence and argument, and were given an opportunity to question the evidence of other intervenors and Trans Mountain. A total of $4,981,760 in participant funding was offered to 69 recipients, 82 per cent of which was offered to Indigenous intervenors.
Much of the evidence and submissions presented was relevant, informative, and helpful to the Board. The Board appreciates the efforts and diligence of the Parties in preparing their evidence and submissions, including the Indigenous oral traditional evidence that the Board heard over approximately three weeks in Calgary, Alberta, and in Victoria and Nanaimo, B.C.
However, the Board observes that, regrettably, not all Parties and commenters adhered to the Hearing Order and many filed evidence or offered comments on issues canvassed in the OH-001-2014 hearing or that were not within the scope of this Reconsideration, adding unnecessarily to the complexity of the hearing process. The Board did not consider evidence or revisit issues that were outside of the scope of the Reconsideration.
In making their submissions, some Parties implored the Board to not only listen, but to hear what they were saying. Elder George Harris from Stz’uminus First Nation said it this way:
You know, in our culture and traditional ways of our people, when we go into our longhouse, my speaker, when he says, “Listen, listen,” that’s a big part of our culture. We listen. I’m hoping that you, the Panel, are going to listen. I’m hoping our words are heard beyond this room.
The Board has endeavored to do this – to listen, hear, and share the evidence and views of the Parties with the GIC and Canadians.
The Board has carefully considered all of the relevant evidence and submissions it received. The Board is of the view that the MH-052-2018 hearing offered a fair and meaningful opportunity for Parties to participate and to fully present their case and represent their diverse points of view.
The Board’s MH-052-2018 hearing also forms part of the overall consultation process with Indigenous peoples with respect to their constitutionally protected rights. In this regard, the GIC has indicated that it will rely on the NEB’s process, to the extent possible, to discharge the duty to consult. The Board’s MH-052-2018 Report may also inform the additional “Phase III” consultations being carried out separately by the Government of Canada with respect to the Project. Although the GIC has the responsibility of ultimately ensuring that the duty to consult has been fulfilled before a decision is made on the Project, the Board has considered those aspects of consultation which are relevant to the Reconsideration and for which evidence was filed on the record.
Weighing the public interest
The Board has undertaken this Reconsideration in accordance with the requirements of the NEB Act, the CEAA 2012, and the SARA, and with the Canadian public interest as a guide.
Weighing the public interest, as required by the NEB Act, is not a rigid or mechanical task. It is a complex, flexible, and multifaceted inquiry that requires the Board to conduct a thorough and scientific examination of evidence relating to economic, environmental, and social factors; to consider the impacts of the Project on Indigenous rights; to weigh and balance the overall benefits and burdens of the Project; and to draw conclusions. This consideration of benefits and burdens also informs the Board’s recommendation under the CEAA 2012 regarding whether any significant adverse environmental effects can be justified in the circumstances. The various factors that the Board considers in this inquiry cannot be understood in isolation from one another, or divorced from the specific context and circumstances surrounding this Project.
In the Board’s view, the benefits of the Project are considerable, including 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.
However, the Board is also of the view that the Project and its related marine shipping carries risks. Its burdens include the significant adverse effects that are likely to be caused by Project-related marine shipping on the Southern resident killer whale and Indigenous cultural use associated with the Southern resident killer whale.
Further, the benefits and burdens of the Project and its related marine shipping are not distributed evenly across the country.
In light of these circumstances, reasonable people can and will disagree on what the best balance and outcome is for Canadians. Sometimes, Parties disagree on the evidence and facts, while other times, Parties agree on the facts but differ in their opinions, perspectives, or values. In carrying out the Reconsideration, the Board has listened carefully and taken into account diverse views. The Board has remained cognizant that the public interest is not regionally based, but is inclusive of all Canadians. It must also be responsive to Canadians’ interests and values as they change over time.
It is through this holistic and contextual lens that the Board has carried out its environmental assessment, including the justification analysis; considered and weighed the Project’s benefits and burdens; and determined that the Project is in the Canadian public interest.
Taking a precautionary approach
Many Parties in the MH-052-2018 hearing emphasized the application of the precautionary principle, despite the fact that there were different interpretations expressed as to exactly what the principle requires.
The Board recognizes the important role of the precautionary principle under the CEAA 2012. The precautionary principle requires that environmental measures must anticipate and prevent environmental harm. A lack of full scientific certainty should not be used as a reason for not implementing measures to prevent environmental harm. Adaptive management can, in certain circumstances, be an important part of a follow-up program for a project to allow for uncertainties in the environmental assessment process. The Board is of the view that certain activities may be permitted despite a lack of full scientific certainty regarding their effects, provided the activity and its effects can be effectively monitored and adaptively managed. This involves an exercise in balancing interests and weighing risks.
The Board has applied the precautionary principle to its environmental assessment in this case. As examples, the Board has applied the precautionary principle to its significance determinations, and to its consideration of measures to mitigate impacts through design, planning, follow-up, and monitoring. The Board has required that effects or consequences be minimized, even if they are only anticipated or possible and not certain.
The importance of taking a precautionary approach is evident when faced with the Salish Sea and its complex and not necessarily well-understood ecosystem. An approximately 18,000-square-kilometre body of water that includes the Straits of Juan de Fuca and Georgia as well as Puget Sound, the Salish Sea is home to diverse marine life. This includes a number of endangered and threatened species, some of which are of particular importance to Indigenous peoples and intrinsic to Indigenous cultural and spiritual practices.
Over 6.5 million people live on or in close proximity to the Salish Sea, and it is home to a population of over 35 types of mammals, 170 species of bird, 240 kinds of fish, and 3,000 species of invertebrates. Not surprisingly, the health of the Salish Sea is of significant importance to all who live in the area.
The evidence in the MH-052-2018 hearing is clear that the Salish Sea is not the healthy environment it once was. It is subject to a number of stressors, including vessel traffic and resulting noise, environmental contaminants, and a decline in salmon. The causes for the current state of the Salish Sea are numerous and diverse, and these effects have accumulated over time. There appears to be no serious controversy among the Parties with regard to these points, nor does there appear to be any serious controversy that Project-related marine shipping is likely to cause significant adverse environmental effects. This is despite the fact that Project-related marine shipping would comprise a relatively small increase in the total vessel traffic in the Salish Sea, and that increased pressure on the Salish Sea and its marine life can be anticipated regardless of whether the Project proceeds.
Taking an holistic approach
Given the cultural, environmental, and commercial importance of the Salish Sea, the Board has adopted an holistic approach to its consideration of the designated Project and how it fits into the wider context of the many current stressors on that body of water, the marine animals and fishes within it, and the people who derive cultural use, livelihood, or pleasure from it. The Board concludes that, while Project-related marine shipping’s incremental addition to cumulative effects on the Salish Sea will not be large, it will add to already significant effects.
Addressing effects, and cumulative effects in particular, on the Salish Sea requires a broad, systemic, and multi-faceted approach. To understand the effects of Project-related marine shipping and how best to mitigate those effects, one needs to understand the complex and interconnected system that it would operate within. In order to be most effective in mitigating environmental harm to the Salish Sea and its ecosystem that is likely to be caused by the Project, a broader approach is required; one which extends beyond the NEB’s regulatory authorities and one which will benefit the broader system. The Board has conducted its environmental assessment, set Project conditions, and made its broader recommendations to the GIC with this in mind. This includes making recommendations that use an offset-based approach. It is the Board’s view that, should the GIC make changes to the operation of all marine traffic, including Project-related traffic, and take action to relieve other stressors within the broader system, it will offset the incremental effects of the designated Project and make material improvements to the health of the Salish Sea.
The Board is also supportive of the role of the Indigenous Advisory and Monitoring Committee (IAMC) for the Project. In the Board’s view, the IAMC is well placed to help facilitate effective and ongoing Indigenous consultation and participation in Project-related Salish Sea monitoring and follow-up measures.
While the Board recognizes that scientific work to better understand the Salish Sea is continuing, it has heard a great deal of evidence, including from a variety of experts. The Board is satisfied that the evidence before it is sufficient for it to make the conclusions and recommendations it has reached in this MH-052-2018 Report.
Project conditions and recommendations to the GIC
The Board will impose 156 conditions on the Project if it is approved. It has also made 16 recommendations to the GIC. The conditions and recommendations are made in a manner consistent with the NEB Act, the CEAA 2012, the SARA, and they apply the precautionary principle.
The conditions cover a wide range of matters, including emergency preparedness and response, protection of the environment, consultation with affected Indigenous communities, socio-economic matters, pipeline safety and integrity, commercial support for the Project prior to construction, and financial responsibility on the part of Trans Mountain.
The Board’s recommendations to the GIC relate to Project-related marine shipping, including 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 greenhouse gas emissions from marine vessels, and the IAMC.
In making its recommendations to the GIC, the Board drew guidance from the Federal Court of Appeal’s decision in Tsleil-Waututh Nation. The Court indicated that the Board should identify mitigation measures within the authority of the federal government, despite the fact that the Board does not regulate marine shipping. The Board is also not limited to identifying measures that are within Trans Mountain’s control to implement. With the addition of recommendations about matters beyond the Board’s authority but within that of the GIC, the GIC will possess the requisite breadth of information to make the informed decisions required of it with respect to the Project.
Both the conditions and recommendations made by the Board are intended to mitigate, avoid, or lessen potential effects associated with the Project and its related marine shipping. The conditions are regulatory requirements imposed on Trans Mountain, which the Board would oversee and enforce as part of its regulatory mandate. In comparison, the recommendations to the GIC fall outside of the Board’s regulatory mandate and are generally beyond the control of Trans Mountain. While the recommendations are sufficiently specific and are evidence-based, they are comparatively less prescriptive than the conditions. This provides a measure of flexibility for the GIC to determine the details of how best to implement them, and the resources required, should it decide to do so. This is appropriate given that the optimization of these mitigation measures may need to be based on a multitude of factors, including the GIC’s overall approach for managing cumulative effects in the Salish Sea, multi- and cross-jurisdictional considerations, and the need to employ ongoing adaptive management in light of the complexities and uncertainties of the Salish Sea.
Although the Board’s recommendations to the GIC are directly related to its environmental assessment of Project-related marine shipping, the Board is of the view that, if implemented, they may assist in mitigating effects of all marine traffic in the area. This would be a positive outcome that would extend beyond mitigating or offsetting the impacts of the Project and its related marine shipping. The Board encourages the Government of Canada in the direction it has already taken to both deepen the scientific understanding of the Salish Sea and its resident marine life, and to continue to put in place procedures, programs, equipment, and funding to safeguard this important Canadian marine resource.
Roadmap to the MH-052-2018 Report
Given that the Reconsideration focused on Project-related marine shipping, much of the OH-001-2014 Report is outside the scope of the MH-052-2018 hearing. However, the GIC must be informed about all aspects of the Project to make the decisions required of it. It is also important to be clear about what changed from the OH-001-2014 Report as a result of the MH-052-2018 hearing.
For this reason, this MH-052-2018 Report contains the sections that were reconsidered by the Board, as well as sections from the OH-001-2014 Report that were beyond the scope of the Reconsideration. This ensures that all pertinent information is captured in a single consolidated report to the GIC.
This MH-052-2018 Report contains the same chapter numbers and titles of the OH-001-2014 Report. Although sections of the OH-001-2014 Report are included in this MH-052-2018 Report, this does not mean that they were within the scope of the Reconsideration or reconsidered by the Board. The beginning of each chapter contains an explanation of what, if anything, was changed from the OH-001-2014 Report.
Most chapters in this MH-052-2018 Report were reproduced from the OH-001-2014 Report and include the views of the original Panel that undertook the OH-001-2014 hearing. These views remain valid and unchanged, and are labelled as “Views of the Board.” Some chapters have undergone substantive changes as a result of the MH-052-2018 hearing and include the views of the Panel that carried out the Reconsideration. These are labelled as “Views of the Reconsideration Panel.”
For issues that fall within the scope of the MH-052-2018 hearing, the Reconsideration Panel included views of the Parties from the OH-001-2014 hearing where they were still applicable. These are then followed by new or updated evidence raised by the Parties in the MH-052-2018 hearing. The views of the Reconsideration Panel contain Board views from the OH-001-2014 Report that were found to remain applicable after considering relevant evidence from both the OH-001-2014 and MH-052-2018 hearings. The views of the Reconsideration Panel include additional views to address the new or updated evidence and to explain if it confirms or modifies the Board’s previous findings from the OH-001-2014 hearing.
The majority of the issues relevant to the MH-052-2018 hearing are covered in Chapters 5 and 14. An overview of what was considered by the Reconsideration Panel and changed from the OH-001-2014 Report is outlined below. The appendices from the OH-001-2014 Report have been reproduced, with updates to reflect the circumstances and factual underpinnings of the Reconsideration. Appendices 14 and 15 are new to this MH-052-2018 Report.
|Chapter / Appendix||Update|
|Introduction and disposition||New|
|Chapter 1 – The Board’s review||Updated to reflect both hearing processes|
|Chapter 2 – Benefits, burdens and recommendations||Updated to reflect the conclusions arising from the Reconsideration|
|Chapter 3 – Regulating the Project Lifecycle||Unchanged|
|Chapter 4 – Public consultation||Unchanged|
|Chapter 5 – Indigenous matters||Section 5.2 includes new or updated evidence and views with respect to Indigenous matters|
|Chapter 6 – Pipeline and facility integrity||Unchanged|
|Chapter 7 – Construction and operations||Unchanged|
|Chapter 8 – Environmental behavior of spilled oil||Section 8.2 includes new or updated evidence and views with respect to the environmental behavior of spilled oil|
|Chapter 9 – Emergency prevention, preparedness and response||Unchanged|
|Chapter 10 – Environmental assessment||Mostly unchanged except for references about the scope of the environmental assessment completed under the CEAA 2012, and Project-related marine shipping|
|Chapter 11 – People, communities and lands||Unchanged|
|Chapter 12 – Need for the project and economic feasibility||Unchanged|
|Chapter 13 – Financial Matters||Unchanged|
|Chapter 14 – Project-related increase in shipping activities||Revised significantly; covers the majority of the issues relevant to the Reconsideration|
The Reconsideration has comprised a comprehensive, evidence-based, fair, and meaningful review of Project-related marine shipping. The Reconsideration process and this resulting report discharge the relevant requirements of the Board under the NEB Act, the CEAA 2012, and the SARA. The Board finds, in conclusion, that the Trans Mountain Expansion Project is in the Canadian public interest and recommends to the GIC that it be approved.
The Board thanks the Parties in the MH-052-2018 hearing for their thoughtful and thorough participation, which has resulted in better information, well-informed conclusions, and more effective conditions and recommendations that serve all Canadians.
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, keeping its pipelines and facilities safe and secure, and protecting people, property, and the environment.
Telephone (toll free): 1-800-899-1265
Toll free fax: 1-877-288-8803
Ruth Anne Beck
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