Indigenous groups warn Trudeau that NEB`s review could create grounds for court challenge again

A diverse range of voices, including former and current intervenors, First Nations, MPs and environmental groups, say the National Energy Board (NEB) is repeating the same errors and flawed process that got the Trans Mountain pipeline approval overturned by the Federal Court of Appeal in August. They say this latest NEB “redo” is creating the grounds for another court case and the federal government must step in to extend the scope of the NEB’s review.

“The NEB re-do review is too little, too late, and is yet another desperate, Hail Mary attempt to resuscitate a dead project,” said Grand Chief Stewart Phillip, President of the Union of BC Indian Chiefs. “The NEB, in its characteristic arrogance, appears to believe they do not have to meaningfully address the clear direction provided by the Federal Court of Appeal in August to do in-depth, detailed work on the impacts of increased tanker traffic on the BC Coast posed by the TMX. First Nations have the right to provide their free, prior and informed consent on projects that impact them, and a rushed NEB re-do is not likely to yield such consent.”

The Federal Court specifically asked the NEB in August to assess the impacts of increased tanker traffic on the BC coast. This includes assessing the impacts to endangered whales. However, the NEB decided to use the much smaller 12 nautical mile limit as requested by the Alberta government, despite the science and the federal government itself showing whales inhabit well beyond that spatial area. So that what’s required is the application of the second option, of 200 nautical miles (nm).


“The National Energy Board seems to have learned nothing from the Federal Court of Appeal’s decision and is repeating many of the same errors that landed them in court last time. With such a limited scope and hasty process, they are limiting the ability for concerned groups to be heard, and missing the opportunity for a scientifically sound assessment of the impacts of tankers to endangered whales,” said Eugene Kung, a staff lawyer with West Coast Environmental Law. “The NEB is creating the grounds for another court case.”

“As an intervenor before the first round of Kinder Morgan hearings before the NEB, and now as an intervenor in the second round, I am deeply disturbed by the narrow focus and tight timeline,” said Green Party Leader Elizabeth May, MP. “It does not appear to me that we will be engaging in a fair process for either genuine consultation with Indigenous peoples or a full review of the impacts of tanker traffic as required by Section 79 of the Species at Risk Act.”

“It’s for good reason that the old expression ‘to do the same thing over and over again but expecting different results is the definition of insanity’ is well used in Parliament. When it comes to Trans Mountain, the flawed and failing review process is an insult to anyone who believed the current government is any different than the last one,” said NDP MP Nathan Cullen. “Meaningful consultation’ requires that the outcome isn’t predestined and that there’s a real intent at respect. Neither are true with this ‘new’ process announced by Mr. Trudeau.”

“Trudeau’s Trans Mountain “reconsideration process” is unfolding with the same defects as the original process and will end the same way – in court, with the approval quashed,” said Tzeporah Berman, Program Director Stand.Earth. “We have a crisis in the National Energy Board, one Trudeau himself identified in 2015. This is the last gasp for a regulator so compromised that two of its members had to step down from the Energy East hearings in 2016 – one of whom now sits on the Trans Mountain panel.”

Community groups say that the NEB has further reduced the scope of its assessment by refusing to consider the threat of the pipeline to salmon spawning grounds ( The NEB is supposed to be working with the federal Department of Fisheries and Oceans (DFO) so that the Ministry can carry out risk analysis. Of the 900 watercourses impacted in the Trans Mountain pipeline construction, 250 are salmon habitat, but fewer than 30 of these have been referred by the NEB to DFO.

“The NEB has refused to assess threats to salmon in this review, which is ludicrous because Chinook salmon is what feeds the whales,” said Lynn Perrin of the community organization Pipe Up, whose submission to be an intervenor was denied.