New Steps Imposed on Pipeline Reviews

The federal government explained how it intends to address gaps in the federal environmental assessment regime on Wednesday.

The Minister of Environment and Climate Change, the Honourable Catherine McKenna, and the Minister of Natural Resources, the Honourable Jim Carr, announced interim measures they say will apply to all energy projects currently undergoing a federal review.

The measures consist of 5 principles to strengthen the review of pipelines and other major energy projects until a new regulatory regime is put in place.

The principles are as follows:

1. Proponents will not have to start over

2. Decisions will be based on science, traditional knowledge, and other relevant evidence

3. The views of the public and affected communities will be considered

4. First Nations will be meaningfully consulted, and where appropriate, accommodated

5. Project-related greenhouse gas emissions will be assessed

No details were provided about the number of reviews that might be expanded to satisfy the 5 principles. Minister Carr says his Ministry will be looking at the projects currently under federal review to decide whether additional measures are needed.

Two reviews, however, will be subject to changes. The Ministers announced additional steps to be added to the review of Kinder Morgan’s Trans Mountain Expansion Project and TransCanada’s Energy East Pipeline Project.

Trans Mountain Expansion Project

For the Trans Mountain Expansion Project, Canada plans to:

  • Undertake deeper consultations with First Nations and provide funding to support these consultations
  • Conduct an assessment of the upstream greenhouse gas emissions and make this information public
  • Appoint a Ministerial Representative to engage communities, including First Nations, potentially affected by the project, to seek their views and report back to the Minister of Natural Resources

An additional 4 months will be added to the review of the Project to allow for this work, extending Cabinet’s decision date from August 2016 to December 2016.

Energy East

For the Energy East Project, Canada says it will:

  • Undertake deeper consultations with First Nations and provide funding to support these consultations;
  • Facilitate expanded public input into the National Energy Board (NEB) review process, including public and community engagement
  • Conduct an assessment of the upstream greenhouse gas emissions and make this information public

Minister Carr says he will seek to extend the NEB’s review of the Project by 6 months, and the time limit for Cabinet’s decision by 3 months. The review process for Energy East is now expected to take 27 months from this spring.

Do The Measures Go Far Enough?


There has been mounting pressure on the Liberals, who campaigned on promises to overhaul these review processes, to strengthen Canada’s environmental assessment regime. The new measures come at an interesting time, just as the NEB is hearing final arguments whether or not to approve Trans Mountain, and before their hearing begin for Energy East.

First Nations have long said that the current NEB process is so flawed

and incapable of addressing First Nations concerns that a whole new process is needed. They may therefore question why the NEB should be allowed to start its review of Energy East rather than wait until the new regulatory regime is in place. The additional consultation proposed for both Trans Mountain and Energy East will be separate from the NEB process and will take place after the NEB has completed its review. This raises questions about how First Nations’ concerns relating to the deficiencies in the NEB’s process will be addressed.

Other than the additional time and funding for consultation, Canada has not provided further details about how it intends to carry out consultation on the Trans Mountain and Energy East Projects. While Wednesday’s announcement referred to “deeper consultations”, when asked whether this would include respecting ‘free prior and informed consent’ as outlined in the United Nations Declaration on the Rights on Indigenous Peoples, Minister Carr failed to provide a direct answer.

Greenhouse Gas Emissions

The NEB’s review of the Trans Mountain Project specifically excluded any consideration of greenhouse gas emissions from production in Alberta’s oil sands. Under the new measures, the assessment of greenhouse gas emissions will still be outside of the NEB’s mandate, but the Ministry of Environment will conduct its own assessment. Minister McKenna said this assessment will be a factor in Canada’s decision whether or not the Project is in the public interest. No specifics were provided about how this assessment would be conducted, but it will be shared with the public for review.

What Happens Next?

Minister McKenna says her Ministry is in the process of conducting a full-scale review of the environmental assessment regime, including a modernization of the NEB. She expects the process to take a few years to complete.

In the meantime, affected First Nations should watch for further information about the additional consultation processes for the Trans Mountain and Energy East Projects as it becomes available.

Any First Nations with concerns about existing federal reviews should consider raising their concerns with the Minister of Natural Resources.

A copy of Canada’s press release announcing the interim measures can be found here.