Bill C-38 and the NEB

Bill C-38 was an act to implement measures announced in the 2012 federal budget. This act contained many significant changes to the environmental protection legislation in Canada.

Public Participation

  • Public participation in pipeline hearings has now been limited to individuals who are “directly affected” or deemed to have “relevant information or expertise”.
  • See Hearing Order Appendix VI (p.36) for Line 9 guidelines.
  • Even if a citizen applies for participant status, is “directly affected” and has “relevant information”, the NEB can still choose to ignore their contributions.

Decision Making Power

  • Cabinet now has the ability to override a decision made by the NEB on a new pipeline with a length of 40km or more. NOTE: Because the physical pipe was not included in the Line 9 application, the NEB still has final say on the Line 9 project.  
  • The chair of the NEB holds immense new powers. The chair may remove any member from the NEB committee who is seen to be holding up the process. Additionally, the chair may choose to vote unilaterally if consensus is not achieved.
  • Decisions will be made behind closed doors and with little public scrutiny.

Limited Scope

  • Previous to Bill C-38, the NEB review extended to any considerations the Board considered relevant. This could include both upstream and downstream activities of the project.
  • Regarding Line 9, the NEB now excludes “environmental and socio-economic effects associated with upstream activities, the development of oil sands, or the downstream use of the oil transported by the pipeline”. See Appendix I – List of Issues (p.14).

Species at Risk Act (SARA)

  • During review of pipeline applications, the NEB is now exempted from seeking to minimize impacts on the habitat of species at risk. 
  • No longer any guaranteed review to evaluate ongoing impacts to endangered species.

Lack of Transparency and Accountability

  • The Canadian Environmental Assessment Agency is now able to exempt a designated project from going through the assessment process!
  • NO MORE JOINT REVIEW PANELS – a Canadian Environmental Assessment Agency enabled review panel is prohibited. Therefore, environmental implications of major energy projects will now be decided by the energy regulator.


Eco Justice – What Bill C-38 means for the environment

David Suzuki Foundation – Bill C-38: What you need to know

About Emily Ferguson

Proud Mom, Consultant & Environmental Advocate working on current issues to help move people & planet in a positive direction.
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