[Oling_Roachinen]

Originally Posted by Regorium

I mean NEB ended up saying the obvious anyways, which is that 6 extra tankers a week is not going to have any significant impact on the killer whales, but it definitely should not be in their scope.

Wait. What? No, it didn't. It literally concluded the exact opposite. I've quoted the relevant portions before. The issue is that it decided it was not in the project scope and therefore the "project" was considered to have no significant environmental concerns and it, and ultimately Canada as the decision maker, failed to properly consider the Species at Risk Act. The Board even used the wording "catastrophic" with respect to a spill on the species.

The decisions and reports are publicly available, you can just read them if you're so inclined instead of spreading misinformation.

https://apps.neb-one.gc.ca/REGDOCS/Item/Filing/A77045

The Board is of the view that the Southern resident killer whale population has crossed a threshold
where any additional adverse environmental effects would be considered significant. The Board is
also of the view that the current level of vessel traffic in the RSA and the predicted future increase of
vessel traffic in the RSA, even excluding the Project related marine vessels, have and would increase
the pressure on the Southern resident killer whale population. Trans Mountain’s Summary of Existing
and Future Vessel Movements at Five Locations in the RSA indicates that Project-related marine
vessels would represent a maximum of 13.9 per cent of all vessel traffic in the RSA, excluding Burrard
Inlet, and would decrease over time as the volume of marine vessel movements in RSA is anticipated
to grow. While the effects from Project-related marine vessels will be a small fraction of the total
cumulative effects, the Board acknowledges that this increase in marine vessels associated with the
Project would further contribute to cumulative effects that are already jeopardizing the recovery of
the Southern resident killer whale. The effects associated with Project-related marine vessels will
impact numerous individuals of the Southern resident killer whale population in a habitat identified
as critical to the recovery and classifies the effects as high magnitude. Consequently, the Board finds
that the operation of Project-related marine vessels is likely to result in significant adverse effects to
the Southern resident killer whale

The Board agrees with DFO and Trans Mountain that there
is no direct mitigation Trans Mountain can apply to reduce or eliminate potential adverse effects
from Project-related marine vessels. The Board recognizes that altering vessel operations, such as
shifting shipping lanes away from marine mammal congregation areas or reducing marine vessel
speed, can be an effective mitigation to reduce impacts on marine mammals from marine shipping.
However, these potential mitigation measures are outside of the Board’s regulatory authority, and out
of Trans Mountain’s control. The Board encourages other regulatory authorities, such as Transport
Canada or Fisheries and Oceans Canada which regulate the marine environment and marine traffic,
to explore any such initiatives that would aim to reduce the potential effects of marine vessels on
marine mammals.

The Board is of the view that with the implementation of Trans Mountain’s environmental protection procedures
and mitigation, and the Board’s recommended conditions, the Project is not likely to cause significant adverse
environmental effects. Therefore, pursuant to the CEAA 2012, the Board recommends that the GIC decide that the
designated Project is not likely to cause significant adverse environmental effects

https://decisions.fca-caf.gc.ca/fca-...#_Introduction

[454] By defining the Project not to include Project-related marine shipping, the Board failed to consider its obligations under the Species at Risk Act when it considered the Project’s impact on the Southern resident killer whale. Had it done so, in light of its recommendation that the Project be approved, subsection 79(2) of the Species at Risk Act required the Board to ensure, if the Project was carried out, that “measures are taken to avoid or lessen” the Project’s effects on the Southern resident killer whale and to monitor those measures.

[455] While I recognize the Board could not regulate shipping, it was nonetheless obliged to consider the consequences at law of its inability to “ensure” that measures were taken to ameliorate the Project’s impact on the Southern resident killer whale. However, the Board gave no consideration in its report to the fact that it recommended approval of the Project without any measures being imposed to avoid or lessen the Project’s significant adverse effects upon the Southern resident killer whale.

[456] Because marine shipping was beyond the Board’s regulatory authority, it assessed the effects of marine shipping in the absence of mitigation measures and did not recommend any specific mitigation measures. Instead it encouraged other regulatory authorities “to explore any such initiatives” (report, page 349). While the Board lacked authority to regulate marine shipping, the final decision-maker was not so limited. In my view, in order to substantially comply with section 79 of the Species at Risk Act the Governor in Council required the Board’s exposition of all technically and economically feasible measures that are available to avoid or lessen the Project’s effects on the Southern resident killer whale. Armed with this information the Governor in Council would be in a position to see that, if approved, the Project was not approved until all technically and economically feasible mitigation measures within the authority of the federal government were in place. Without this information the Governor in Council lacked the necessary information to make the decision required of it.
....
[470] The unjustified exclusion of Project-related marine shipping from the definition of the Project thus resulted in successive deficiencies such that the Board’s report was not the kind of “report” that would arm the Governor in Council with the information and assessments it required to make its public interest determination and its decision about environmental effects and their justification. In the language of Gitxaala this resulted in a report so deficient that it could not qualify as a “report” within the meaning of the legislation and it was unreasonable for the Governor in Council to rely upon it. The Board’s finding that the Project was not likely to cause significant adverse environmental effects was central to its report. The unjustified failure to assess the effects of marine shipping under the Canadian Environmental Assessment Act, 2012 and the resulting flawed conclusion about the effects of the Project was so critical that the Governor in Council could not functionally make the kind of assessment of the Project’s environmental effects and the public interest that the legislation requires.

[764] In these reasons I have concluded that the Board failed to comply with its statutory obligation to scope and assess the Project so as to provide the Governor in Council with a “report” that permitted the Governor in Council to make its decision whether to approve the Project. The Board unjustifiably excluded Project-related shipping from the Project’s definition.

[765] This exclusion of Project-related shipping from the Project’s definition permitted the Board to conclude that section 79 of the Species at Risk Act did not apply to its consideration of the effects of Project-related shipping. Having concluded that section 79 did not apply, the Board was then able to conclude that, notwithstanding its conclusion that the operation of Project-related vessels is likely to result in significant adverse effects to the Southern resident killer whale, the Project was not likely to cause significant adverse environmental effects.

[766] This finding—that the Project was not likely to cause significant adverse environmental effects—was central to its report. The unjustified failure to assess the effects of Project-related shipping under the Canadian Environmental Assessment Act, 2012 and the resulting flawed conclusion about the environmental effects of the Project was critical to the decision of the Governor in Council. With such a flawed report before it, the Governor in Council could not legally make the kind of assessment of the Project’s environmental effects and the public interest that the legislation requires.
....
[770] Specifically, the Board ought to reconsider on a principled basis whether Project-related shipping is incidental to the Project, the application of section 79 of the Species at Risk Act to Project-related shipping, the Board’s environmental assessment of the Project in the light of the Project’s definition, the Board’s recommendation under subsection 29(1) of the Canadian Environmental Assessment Act, 2012 and any other matter the Governor in Council should consider appropriate.

I do admit this one is a little harder to really understand as the board does a good job of discussing how bad this project could be to the species in its report. The problem really stems from its conclusion to "recommend that the GIC decide that the designated Project is not likely to cause significant adverse environmental effects"..if it had just included "except to marine mammals as a result of the extra traffic" would that have really had a huge effect on the overall decision by the GIC?

It's getting into legalesse. But I guess the appeal judges saw it as "As a result of this project there's the potential significant adverse environmental effects, however, if you don't look at this portion of the project, then there are no environmental effects to worry about" which is somewhat foolish.