(Daily Oil Bulletin) – The National Energy Board (NEB) says it has received a federal cabinet order requiring it to reconsider its recommendations on the Trans Mountain pipeline expansion as they are relevant to project-related marine shipping.
The government has directed the work be completed within 155 days.
The directive is in response to an Aug. 30 Federal Court of Appeal decision which quashed the cabinet approval of the expansion project and nullified the certificate issued by the NEB.
In its referral, the cabinet refers back to the NEB for reconsideration its recommendations and all the terms and conditions set out in the board’s May 19, 2016 report on the Trans Mountain expansion that are relevant to addressing the issues specified by the appeal court.
The board is directed to conduct the reconsideration taking 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 maritime shipping on species at risk, including the Northeast Pacific southern resident killer whale population and their critical habitat, in view of any requirements of Section 79 of the Species at Risk Act (SARA) that may apply to the project.
The NEB said it is confident that it will be able to complete the work within the required timeline and promised to provide more information regarding next steps in the coming days.
However, Alberta Senator Doug Black, in a statement on Sept. 24, expressed disappointment at what he sees as a slow and incomplete federal government plan. The government, he said, has not provided any specifics on additional Indigenous consultation measures — also directed by the court — saying only that more details will be coming soon.
“This announcement will not fast forward action to reverse the loss of jobs and the serious negative financial impact on Canadian families,” said Black. “There is no sense of urgency by the government, and this results in a loss of jobs and opportunities.”
He reiterated his call for the government to adopt his proposed Trans Mountain Pipeline Project Act, declaring Trans Mountain and its related works to be in the general interest of Canada, which Prime Minister Justin Trudeau has publicly agreed with, according to Black.
The timeline for the review, stretching to late February 2019, allows the government to potentially restart construction before the expected spring election in Alberta.
Natural Resources Minister Amarjeet Sohi, in Halifax, declined to say when construction could resume.
"We are not focused on election cycles. We are focused on what needs to be done right," he said.
Alberta Premier Rachel Notley said today the 22-week regulatory timeline set by the federal government is “reasonable” and is in line with what her government knew was the best case scenario when the appeal court issued its ruling.
The issue now is to ensure that “the timeline is set in stone,” she told a news conference in Edmonton. “And if it starts to slip and the goalposts shift, I can assure you that the voices of Albertans will be loud ... but through my government they will be heard.”
Notley acknowledged that her government still remains “a little bit skeptical” about the federal process as it believed there was a way in which Ottawa could assert its authority over the NEB legislation to close loopholes that might be “gamed” by legal advocates who are simply doing everything they can to stop the pipeline expansion.
That’s why it will be watching the process so closely, she said. “We will not tolerate legal game playing and should it start to appear that game playing is working, we will hold Ottawa’s feet to the fire.”
If the timeline starts to slide and persons are successfully able to argue it should take longer than 22 weeks, the province will ask the federal government to step in with a legislative fix because “we can’t let the game playing within the legal system go on indefinitely.”
At the end of the day, what matters most to the government, workers and investors is that there is a credible timeline in place on which they will be able to make plans, she said.
Notley said it is premature at this point to say when project construction might resume because the federal government has not yet indicated how it intends to deal with additional Indigenous consultation after it receives the report from the NEB in mid-February.
“The reality is that if you impose an arbitrary deadline on the accommodation and consultation process, you undermine the credibility of that process from the get-go and you give opponents greater opportunity to contest it in yet another court case.”
Courts have laid out over time, in cases where consultation is deemed to be adequate, ranges of between five and eight months, she said. In the case of Trans Mountain, the court has said that while much of the consultation has been done, more is to be done. “What we need is a timeline that is reasonable, where the issues that are at play are clearly understood by everybody and people can move forward.”
In the meantime, Alberta is going to continue to push very hard across the country to grow the support and understanding in all provinces of the need for the Trans Mountain expansion, said Notley. “We need to grow the sense of urgency on the part of working people in other parts of the country who do depend on this, whether they know it or not right now.”
Through that work, she suggested, “the pressure will be even stronger on the federal government.”
B.C. government reaction
“Since the Federal Court of Appeal’s ruling, our government has been reviewing the decision to determine the full implications. The federal government’s announcement provides further context for our ongoing study of the judgment,” said B.C. Environment Minister George Heyman.
“From the beginning, our government has raised concerns about the failure of the federal process to properly consider the risks to B.C. from increased tanker traffic. The court’s decision and the federal government’s announcement validate those concerns.”
He added: “We are looking forward to seeing the details, but any further review process must comprehensively address the risks that our government, and many British Columbians, have been raising.”
The court also found that the federal government failed to adequately consult First Nations. Meaningful consultation is critical to any future actions, the minister said.
“A diluted bitumen spill would present a threat to our coast and the tens of thousands of jobs that rely on the coast. We will continue to defend B.C.’s interests.”
