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Members of the National Energy Board pane Murray Lytle, Lyne Mercier and Alison Scott listen to Councillor Andrew Victor of Cheam at the Delta Hotels Victoria Ocean Pointe Resort in Victoria, B.C., on Nov. 26, 2018.CHAD HIPOLITO/The Canadian Press

Tom Sampson, an elder with the Tsartlip First Nation, stood before the National Energy Board last week and sang a prayer song in the language his grandmother would sing when someone died. He was singing for Tahlequah, a member of the J-Pod of killer whales, who this summer carried her dead newborn calf in the waters off of southern Vancouver Island for more than two weeks in an apparent display of grief.

The mother whale, part of the endangered southern resident killer whale population, was delivering a message, he said: “Something is wrong with what we are doing.”

The NEB panel is reconsidering the Trans Mountain expansion proposal, after the federal Court of Appeal overturned Ottawa’s approval for the oil pipeline. Unlike the first hearings, the plight of the whales is at the core of this review.

The appeal court judges, in their ruling last August, concluded the federal approval for the project was based on flawed advice because the NEB deemed the impact of oil tanker traffic from the project – through the waters where the southern resident killer whales spend much of the year – to be outside the scope of its review.

Mr. Sampson’s song underscores his people’s connection to the southern resident killer whales who they fear will be wiped out by the increased marine traffic that the pipeline expansion would bring.

The Tsartlip elders told the NEB their stories of how they are related to the whales. How they thank them for safe passage when they travel by water with an offering of salmon. How they show respect by travelling quietly in the whales’ territory. How they pray to them, and celebrate when the whales return in May to Brentwood Bay, in their community.

Another elder, John Elliott, challenged the three-member panel: “Will you let them die, the last of them, or are you going to do something about it?”

The NEB panel, chaired by Lyne Mercier, has a tough assignment. When the NEB first reviewed the project that will triple the capacity of oil flowing from Edmonton to the terminal at Burnaby, the owner of the project was a Texas oil company. Ottawa has since purchased Trans Mountain and is committed to proceeding with the project.

In response to the Court of Appeal, the federal government has given the NEB until Feb. 22 to deliver a final report to cabinet addressing the deficiencies in the earlier review. With that tight timeline, the hearings are limited to Indigenous oral testimony over the span of three weeks.

It was in part by leaving the impact of marine traffic out of the scope in the original hearing that the NEB was able to recommend to cabinet that the project would not likely cause significant adverse environmental effects.

The problem for Ms. Mercier’s panel now is that in the original hearings, the NEB found Trans Mountain’s projected increase in oil tanker traffic through the Salish Sea will likely result in significant adverse effects to the southern resident killer whales, whose population has diminished to just 74 animals.

To recommend the project, such as the federal government would like in order to complete the expansion, the NEB must somehow find there is a way to mitigate those significant adverse effects.

This past summer, a dismal return of chinook salmon in the Salish Sea took its toll on the whales. Following the spectacle of Tahlequah carrying her dead baby, there was a dramatic – but ultimately failed – effort to save another starving whale named Scarlett.

Ottawa has made a series of announcements aimed at protecting the whales, including reductions in the chinook salmon fishery and measures to reduce vessel noise in marine environment. Jonathan Wilkinson, Minister of Fisheries, Oceans and the Canadian Coast Guard, has promised his department will identify and protect new areas of critical habitat for the whales, and the changes should be in place before the whales return to the Salish Sea next May. On Friday, he announced a new salmon restoration fund.

But Tsartlip Chief Don Tom warned the panel that another recommendation for approval will not end their opposition.

“We don’t have faith in the current process," he said. “The National Energy Board doesn’t have the ability to properly address our constitutional rights and infringements of this project on Tsartlip’s right to fish, harvest, gather and hunt, and to carry on our ceremonial practices within our territory.”

The federal government wants shovels in the ground in 2019. But it is clear that from those Indigenous communities that oppose the Trans Mountain project, this NEB process is likely to be just a prelude to the next court challenge.

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