Court Challenges to National Energy Board or Governor in Council Decisions

The NEB operates within a system of checks and balances. Our decisions are subject to independent and impartial judicial oversight, generally through the Federal Court of Appeal and Supreme Court of Canada, and the Board is bound to act in accordance with the court’s decisions.

As part of our commitment to transparency, we share information about challenges to the NEB’s decisions and recommendations to the Governor in Council in the database below. The purpose is to provide Canadians with up-to-date information about the status of these legal challenges, regardless of the outcome.

The following information includes the status of litigation, appeals, and judicial reviews related to NEB or Governor in Council decisions. Where possible, the database provides a link to an external third-party controlled website, such as the Court database or an online version of the decision. It does not include civil claims or judicial reviews of administrative decisions. The database is searchable by project name, parties or filing date.

Consolidated Trans Mountain Expansion Project Judicial Reviews

Trans Mountain Expansion (TMX) Project
(OH-001-2014)

Nine applicants applied individually for leave to judicially review GIC’s Order in Council PC 2016-1069 (OIC), approving the TMX Project. Leave was granted on 22 February 2017. On 9 March 2017, the Court ordered the judicial review proceedings be consolidated under file number A-78-17. The hearing for the consolidation of the 15 Judicial Reviews is scheduled to start on 2 October 2017 in Vancouver.

Parties Court Filing Date Court and Docket Number Summary
Tsleil-Waututh Nation v. National Energy Board, Trans Mountain Pipeline ULC and Attorney General of Canada 2017-01-13 Federal Court of Appeal
17-A-1
A-78-17
(JR)
LEAD FILE
Issues raised include the Crown’s duty to consult and accommodate the applicant’s constitutional rights and compliance with CEAA 2012.
Musqueam Indian Band v. Trans Mountain Pipeline ULC and Attorney General of Canada 2017-01-03 Federal Court of Appeal
16-A-55
A-73-17
(JR)
Issues raised include the Crown’s duty to consult and accommodate the applicant’s constitutional rights.
Aitchelitz et al  v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-28 Federal Court of Appeal
16-A-56
A-86-17
(JR)
Issues raised include procedural fairness and the Crown’s duty to consult and accommodate the applicants’ constitutional rights.
Upper Nicola Band v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-28 Federal Court of Appeal
16-A-54
A-74-17
(JR)
Issues raised include the Crown’s duty to consult and accommodate the applicant’s constitutional rights.
Squamish Nation et al v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-23 Federal Court of Appeal
16-A-52
A-77-17
(JR)
Issues raised include assessment of impacts and the Crown’s duty to consult and accommodate the applicants’ constitutional rights.
Coldwater Indian Band v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-23 Federal Court of Appeal
16-A-51
A-76-17
(JR)
Issues raised include assessment of impacts and the Crown’s duty to consult and accommodate the applicant’s constitutional rights.
Chief Ron Ignace, Stk'emlupsemc Te Secwepemc Nation  et al v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-22 Federal Court of Appeal
16-A-49
A-68-17
(JR)
Issues raised include the Crown’s duty to consult and accommodate the applicant’s constitutional rights and cumulative effects.
City of Burnaby v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-20 Federal Court of Appeal
16-A-47
A-75-17
(JR)
Issues raised include the validity of the OIC, assessment of impacts and alternative means, and procedural fairness.
Raincoast Conservation Foundation & Living Oceans Society v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-19 Federal Court of Appeal
16-A-45
A-84-17
(JR)
Issues raised include the validity of the OIC, and assessment of impacts under CEAA 2012 and SARA.

Seven applicants applied individually for judicial review of the National Energy Board’s Recommendation Report dated 19 May 2016 [Filing A77045]. On 22 February 2017, the Court adjourned the seven judicial reviews of the NEB Report, for consideration by the assigned Panel of the nine leave applications granted. On 9 March 2017, the Court ordered the judicial review proceedings be consolidated under file number A-78-17. On 28 April 2017, the applicants, Kwantlen First Nation, Cheam First Nation and Chawathil First Nation, filed a Notice of Discontinuance, Federal Court of Appeal A-230-16. The hearing for the consolidation of the 15 Judicial Reviews is scheduled to start on 2 October 2017 in Vancouver.

Parties Court Filing Date Court and Docket Number Summary
Tsleil-Waututh Nation v. National Energy Board, Trans Mountain Pipeline ULC and Attorney General of Canada 2016-06-20 Federal Court of Appeal
A-232-16
Issues raised included the Crown’s duty to consult and accommodate the applicants’ constitutional rights and seeking, among other things, to quash the Board’s Recommendation Report.
City of Vancouver v. The Attorney General of Canada, National Energy Board and Trans Mountain Pipeline ULC 2016-06-17 Federal Court of Appeal
A-225-16
Issues raised include seeking to prohibit the GIC and the Board from making any decisions, issuing any orders or taking any other actions to enable the Project to proceed until the requirements of the NEB Act and CEAA 2012 have been met.
City of Burnaby v. Trans Mountain Pipeline ULC 2016-06-17 Federal Court of Appeal
A-224-16
Issues raised included procedural fairness and/or natural justice matters and the public interest determination and seeking to quash the Board’s Recommendation Report.
Coldwater Indian Band and others v. Trans Mountain Pipeline ULC 2016-06-17 Federal Court of Appeal
A-223-16
Issues raised included the Crown’s duty to consult and accommodate the applicants’ constitutional rights and seeking, among other things, to quash the Board’s Recommendation Report.
Raincoast Conservation Foundation and Living Oceans Society v. Attorney General of Canada and Trans Mountain Pipeline ULC 2016-06-17 Federal Court of Appeal
A-218-16
Issues raised include seeking to prohibit the GIC and the Board from making any decision, issuing any orders or taking any other actions to enable the Project to proceed until the requirements of the NEB Act, CEAA 2012 and SARA have been met.
The Squamish Nation (also known as the Squamish Indian Band) et al v. Trans Mountain Pipeline ULC 2016-06-16 Federal Court of Appeal
A-217-16
Issues raised included the Crown’s duty to consult and accommodate the applicants’ constitutional rights and seeking, among other things, to quash the Board’s Recommendation Report.

Other Court Challenges

Project Name Description of Challenge Parties Court Filing Date Court and Docket Number Summary
ITC Lake Erie Connector IPL
(EH-001-2015)
Application to judicially review GIC’s Order in Council, PC 2017-0808 approving the project Mississaugas of the New Credit First Nation v. Attorney General of Canada and ITC Lake Erie Connector LLC 2017-07-24 Federal Court of Appeal
A-218-17
The applicant applied to judicially review the GIC’s approval of the ITC Lake Erie Connector project. Issues raised include the Crown’s duty to consult and accommodate the applicant’s constitutional rights.
Enbridge Line 10 Westover Segment Replacement Project
(OH-001-2016)
Application to judicially review the Board’s decision [Document 3179108] approving the project. City of Hamilton v. Enbridge Pipelines Inc. et al. 2017-02-27 A-67-17
(JR)
The applicant applied to judicially review based on jurisdictional errors, errors of fact, law, and mixed law and fact with respect to the Board’s decision to allow the line to be decommissioned in place and its findings about the benefits/risks, mitigations, and significance of impacts.

The applicant filed a Notice of Discontinuance on 10 April 2017.
TCPL Mainline operations and maintenance activity Statement of Claim Aroland First Nation and Ginoogaming First Nation v. National Energy Board, TransCanada PipeLines Limited and Attorney General of Canada 2017-01-05 Ont. Ct of Justice
CV-17-567115
The applicants seek, among other things, injunctive and declaratory relief and damages for alleged breach of constitutional obligations to consult and accommodate related to TCPL’s plans to conduct integrity digs and other work in NW Ontario.
Enbridge Pipelines Inc. Line 3 Replacement Program
(OH-002-2015)
Application for leave to judicially review GIC’s Order in Council PC 2016-1048, approving the Enbridge Line 3 Replacement Program Assembly of Manitoba Chiefs v. Attorney General of Canada and Enbridge Pipelines Inc. 2016-12-28
(leave)

2017-02-03
(JR)
Federal Court of Appeal
16-A-53
(leave)

A-36-17
(JR)
The applicants applied to judicially review GIC’s decision to approve this Project. Issues raised included GIC exceeding its jurisdiction in making its decision and acting inconsistently with its responsibilities under the honour of the Crown and procedural fairness.

On 15 March 2017, the Court granted the NEB leave to intervene.
Enbridge Pipelines Inc. Line 3 Replacement Program
(OH-002-2015)
Application for leave to judicially review GIC’s Order in Council PC 2016-1048, approving the Enbridge Line 3 Replacement Program Manitoba Metis Federation v. Attorney General of Canada 2016-12-22 Federal Court of Appeal
16-A-48
(leave)

A-125-17
(JR)
The applicant applied for leave to judicially review GIC’s decision to approve this Project. Issues raised included GIC exceeding its jurisdiction in making its decision and acting inconsistently with its responsibilities under the honour of the Crown and procedural fairness.

The applicant filed a Notice of Discontinuance on 4 July 2017.
2017 NGTL System Expansion Project
(GH-002-2015)
Application to judicially review GIC’s Order in Council PC 2016-0962 approving the project. Bigstone Cree Nation v. Nova Gas Transmission Ltd. and Canada (A-G) 2016-12-07
(leave)

2017-01-26
(JR)
Federal Court of Appeal
16-A-44
(leave)

A-31-17
(JR)
The applicants applied to judicially review the decision to approve the project. Issues raised include the Crown’s duty to consult and accommodate.

Leave to judicially review was granted and the application was filed on 26 January 2017.

The NEB was granted leave to intervene on 20 March 2017.
Enbridge Northern Gateway
(OH-4-2011)
[Folder 620327]
Application for leave to appeal the FCA decision in Gitxaala Nation v Her Majesty the Queen
[2016 FCA 187]
Raincoast Conservation Foundation v. Her Majesty the Queen et al 2016-09-21 Supreme Court of Canada
File 37201
The applicant filed for leave to appeal the FCA’s decision. The issue raised relates to the availability of judicial review for an environmental assessment report prepared under the Canadian Environmental Assessment Act, 2012.

On 9 February 2017, the SCC denied the leave to appeal application. The Court did not give reasons for its decision, which is not uncommon.
Alliance Pipeline Ltd. Application for leave to appeal the Board’s 21 July 2016 Letter Decision
[Filing A78635]
Alliance Pipeline Ltd. v. National Energy Board, Canadian Association of Petroleum Producers, Tenaska Marketing Canada, TMV Corp., Encana Corporation, and BP Canada Energy Group ULC 2016-08-22 Federal Court of Appeal
16-A-28
The applicant filed an application for leave to appeal the Board’s decision respecting the prior period adjustment fee. The matter of jurisdiction was raised as an issue.

On 22 March 2017, Alliance discontinued its application.
Trans Canada Energy East Project
(OH-002-2016)
Challenge to the Board's 21 March 2016 decision [Filing A76011] with respect to the French version of the consolidated application of Energy East Centre Québécois du droit de l’environnement, André Bossinotte, Réjean Beauparlant, Guy Provost and Stéphane Sansfaçon v. Office National de L’énergie et le Procureur Général du Canada 2016-04-20 Federal Court
A-125-16
The applicants filed a notice of application for judicial review seeking a determination of the applicability of the Canadian Charter of Rights and Freedoms and the Official Languages Act to the French version of Energy East’s consolidated application.
TransCanada PipeLines Limited Prince Rupert Gas Transmission Project (PRGT Project) Application for leave to appeal the Board’s 30 November 2015 decision [Filing A74353] regarding jurisdiction over the proposed PRGT Project Michael Sawyer v. TransCanada Ltd. and Prince Rupert Gas Transmission Ltd. 2015-12-30
(leave)

2016-04-14
(appeal)
Federal Court of Appeal
File 15-A-60

A-115-16
(appeal)
The applicant sought to appeal the Board’s 30 November 2015 decision dismissing Mr. Sawyer’s application for a determination that the PRGT Project fell within federal jurisdiction and regulated by the Board.

On 19 July 2017, the FCA allowed the appeal remitting the appellant’s application to the Board for redetermination.

See 2017 FCA 159
Enbridge Line 9B
(OH-002-2013)
Appeal of the FCA’s decision [2015 FCA 222] related to the NEB’s 6 March 2014 decision to approve Line 9B. [Filing A59170] Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., NEB, Canada (A-G) 2015-12-18 Supreme Court of Canada
File 36776
The applicants appealed the FCA’s decision dismissing their appeal related to Enbridge’s Line 9B. Issues raised include the role of administrative tribunals in relation to the Crown’s duty to consult and accommodate

On 26 July 2017, the SCC dismissed the appeal.

See 2017 SCC 41
Trans-Mountain Expansion Project
(OH-001-2014)
Appeal of BCSC decision in 2015 BCSC 2140 City of Burnaby v. Trans Mountain Pipeline ULC and NEB 2015-12-01 British Columbia Court of Appeal CA043285 Application to appeal BCSC dismissal related to NEB Ruling No. 40 [Filing A63788.]

On 27 March, 2017, the BCCA dismissed the appeal.

See 2017 BCCA 132
(TGS/PGS/Multi Klient) – 2011 Northeastern Canada 2D Marine Seismic Survey Appeal of the FCA’s judicial review decision [2015 FCA 179] on the NEB’s June 26, 2014 decision to grant a Geophysical Operations Authorization to TGS-NOPEC et al. Hamlet of Clyde River, Nammautaq Hunters & Trappers Organization – Clyde River, and J. Natanine v. TGS-NOPEC Geophysical Company ASA (TGS), Petroleum Geo-Services Inc. (PGS), Multi Klient Invest as (MKI), and Canada (A-G) 2015-10-14 Supreme Court of Canada
File 36692
The applicants appealed the FCA’s dismissal of their application to judicially review the Board’s decision. Issues raised relate to the Crown’s duty to consult and accommodate, and its ability to rely on the Board’s processes.

On 26 July 2017, the SCC allowed the appeal.

See 2017 SCC 40
NGTL North Montney
(GH-001-2014)
Application for leave to appeal the FCA’s 12 August 2015 dismissal of the motion to judicially review GIC’s Order in Council PC 2015-0799 to approve the NGTL North Montney Project Saulteau First Nations v. Canada (A-G), Nova Gas Transmission, and the NEB 2015-10-13 Supreme Court of Canada
File 36677
The applicants applied for leave to appeal the FCA’s dismissal of their application to judicially review GIC’s decision to approve this Project. Issues raised include the test for leave to judicially review pursuant to section 55 of the National Energy Board Act and whether the Project is under federal or provincial jurisdiction

Application for Leave to Appeal dismissed on 14 September 2017.

The Court did not give reasons for its decision, which is not uncommon.

See 2017 SCC (36677) 
NGTL North Montney
(GH-001-2014)
Motion for leave to judicially review GIC’s Order in Council PC 2015-0799 to approve the NGTL North Montney Project Blueberry River First Nations v. Nova Gas Transmission, and Canada (A-G) 2015-07-06 Federal Court of Appeal
15-A-36


Supreme Court of Canada
36676
The applicants applied for leave to judicially review GIC’s decision to approve this Project. Issues raised included the Crown’s duty to consult and accommodate the applicants’ constitutional rights and concerns about direct and cumulative impacts to culturally-sensitive areas and Treaty rights.

The application for leave to judicially review was dismissed by the FCA on 12 August 2015. The Court did not give reasons for its decision, which is not uncommon.

Application for Leave to Appeal dismissed on 14 September 2017.

The Court did not give reasons for its decision, which is not uncommon.

See 2017 SCC (36676)

Court Challenges to National Energy Board or Governor in Council Decisions Archive

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