Pipeline Project
In this decision, the AER considered applications by TransCanada Pipelines Limited (“TransCanada”) to construct two crude oil pipelines, referred to as the White Spruce Pipeline Project (the “Project”).
In this decision, the AER approved the Project for the reasons summarized below.
The Project
The Project consisted of two pipelines:
• The first pipeline would be 508 millimetres (mm) in diameter and about 50 metres (m) in length.
• The second pipeline would be 323.9 mm in diameter and 71.5 kilometres (km) in length.
The Project would deliver synthetic crude oil (“SCO”) from Canadian Natural Resources Limited’s (“CNRL”) Horizon processing plant to the Grand Rapids Pipeline GP Ltd. MacKay Terminal for delivery to markets.
The proposed Project is indicated in orange on Figure 1.
Legal Framework
The AER explained that:
(a) as set out in section 2(1) of the Responsible Energy Development Act (“REDA”), the AER’s mandate is to provide for the efficient, safe, orderly, and environmentally responsible development of energy resources in Alberta; and
(b) therefore, in this case, the AER had to decide whether approving the Project was consistent with the AER’s mandate.
The AER determined that the following were the key questions it had to decide:
• Is the project needed to provide for the efficient and orderly development of Alberta’s energy resources?
• What are the potential adverse effects on aboriginal participants and can they be adequately mitigated?
• What are the potential environmental effects of the project and can they be adequately mitigated?
• Is the project designed in a way that it can be constructed and operated safely?
Need for Project
To determine whether the project was needed, the AER considered the following:
(a) the total SCO production expected from the Horizon plant after the phase 3 expansion;
(b) the transportation capacity of existing pipeline facilities;
(c) if increased production from the Horizon plant would exceed the existing transportation capacity; and
(d) whether other options existed to transport increased production from the Horizon plant.
The AER found that:
(a) the daily average future capacity of the Horizon plant would gradually exceed 250,000 bbl/d of SCO once the expansion is complete;
(b) the Horizon pipeline operated by Pembina could handle up to 250 000 bbl/d of SCO from the Horizon plant; and
(c) there were no other viable options to transport increased production from the Horizon plant.
Given the above, the AER found that the proposed White Spruce Pipeline project was needed to provide for the efficient and orderly development of Alberta’s energy resources and would not result in unnecessary proliferation.
Potential Adverse Effects on Aboriginal Participants
The Project would be located within Fort McKay First Nation’s (“Fort McKay”) traditional territory.
The AER considered how the project could affect Fort McKay and their ability to exercise their treaty and aboriginal rights. The AER explained that Fort McKay’s Treaty 8 and aboriginal rights were constitutionally protected and included their right to hunt, fish, trap, and gather for food, social, cultural, and consumption purposes and to use and enjoy their reserve lands.
Fort McKay First Nation (“Fort McKay”) raised concerns about the Project’s impacts on:
(a) watercourse crossings and that the Project would affect water quality and fish due to the potential for bank erosion and leaks;
(b) wildlife and habitat;
(c) herbicide use; and
(d) cumulative effects of industrial development on exercising their treaty and aboriginal rights.
Water Crossings
The AER noted that:
(a) The Project would cross 31 waterbodies, including crossings at three main watercourses: the Dover River, Mackay River, and an unnamed tributary to the Mackay River;
(b) TransCanada would use horizontal directional drilling (“HDD”) at a minimum depth of 48m below the watercourse bed for the three main watercourse crossings; and
(c) For the remaining watercourse crossings, TransCanada would construct open-cut crossings during frozen ground conditions to minimize disturbance.
The AER found that:
(a) The use of HDD at the proposed depth would protect the three main watercourses from disturbance to fisheries and habitat; and
(b) Minimal disturbance techniques, erosion control procedures, and monitoring during and after construction would mitigate potential adverse effects on the remaining watercourse crossings and Fort McKay’s rights to use those watercourses.
Based on the above, the AER concluded that the proposed watercourse crossing methods would avoid or minimize impacts to Fort McKay’s rights to fish, travel, and use the waterbodies for cultural enjoyment.
Wildlife and Habitat
Fort McKay expressed concerns about the project’s impacts on wildlife in the area. They were primarily concerned about the impacts on their treaty and aboriginal rights focused on caribou and moose.
The AER noted that:
(a) TransCanada’s caribou protection plan set out mitigation strategies to reduce adverse effects on caribou and caribou habitat; and
(b) TransCanada set out general mitigation measures in its environmental protection plan to minimize impacts to all wildlife, including caribou and moose, by:
(i) paralleling existing linear disturbance for the entire project footprint;
(ii) completing construction during winter conditions; and
(iii) using minimal surface disturbance techniques to facilitate quicker vegetation recovery.
The AER found that Fort McKay’s wildlife concerns had been addressed and that any incremental effects of the project on Fort McKay’s rights to harvest wildlife would be adequately mitigated by TransCanada’s caribou and environmental protection plans, along with the following conditions imposed by the AER:
• If moose were identified in the immediate vicinity (right-of-way plus 100 metres) of the construction zone, TransCanada must immediately suspend work in the vicinity of the moose, assess the situation, and allow construction to resume only when the moose have moved safely away from the construction zone.
• If a trench must be left open overnight or unattended, sloped subsoil ramps must be placed at the ends of the open trench to create egress for wildlife that might enter the trench.
• At wildlife migration or travel corridors identified by TransCanada or the AER, TransCanada must install breaks in windrows to allow wildlife movement across the project footprint.
The AER found that TransCanada’s commitment to restrict the general application of herbicides near traditional land-use sites, together with its more general mitigation measures on herbicide use, represented a responsible approach to avoiding potential impacts to Fort McKay’s exercise of its treaty and aboriginal rights.
Cumulative Effects
The AER found that Fort McKay’s concerns about cumulative effects on their treaty and aboriginal rights were general in nature and not supported by specific evidence.
The AER further noted that the Aboriginal Consultation Office indicated that the Government of Alberta (“GoA”) was working through the Lower Athabasca Regional Plan to respond to cumulative impact concerns. Neither of these frameworks was yet completed or in effect. The AER noted that when complete, such frameworks should provide clearer direction and guidance to the AER in determining issues like those raised by Fort McKay.
Consultation: Aboriginal Consultation Office Reports and Recommendations
The AER explained that the GoA is required to consult with aboriginal groups when decisions under its jurisdiction may adversely affect treaty and aboriginal rights. Under section 21 of REDA, the AER has no jurisdiction to assess the adequacy of Crown consultation associated with the rights of aboriginal people. This authority remains with the GoA and is carried out by the ACO.
Under the Aboriginal Consultation Direction Ministerial Order, the AER cannot make a decision on an energy application requiring aboriginal consultation until it has requested and received the ACO’s advice on consultation adequacy and on any required action to address potential adverse effects on the treaty and aboriginal rights or traditional uses.
In this decision, the AER considered two reports from the ACO:
(a) the first ACO report addressed the project consultation and potential adverse impacts on Fort McKay’s treaty and aboriginal rights; and
(b) the second ACO report considered the record of the AER proceeding and addressed matters not previously addressed in the consultation process.
In those reports, the ACO found consultation with Fort McKay to be adequate. The ACO made recommendations to reduce impacts to wildlife and the AER to require actions consistent with or equally effective as TransCanada’s mitigation plans to address these impacts.
For the reasons summarized above, the AER found TransCanada’s proposed avoidance and mitigation measures, along with the conditions imposed by the AER, would adequately mitigate potential adverse impacts on Fort McKay’s treaty and aboriginal rights.
Potential Environmental Effects
Key Wildlife and Biodiversity Zones
Key Wildlife and Biodiversity Zones are identified and mapped by the GoA. The AER noted that the Project would be located within a designated Key Wildlife and Biodiversity Zone.
The AER found that the use of horizontal directional drilling techniques to install the pipeline beneath the Mackay River biodiversity zone would adequately mitigate construction and long-term effects on the Key Wildlife and Biodiversity Zone.
Vegetation
The AER found that:
(a) the proposed vegetation control within 5 m on either side of the pipeline’s centreline for a 15 m right-of-way would leave a revegetated strip of 2.5 m on either side of the right-of-way; and
(b) this would not make a significant contribution to restoration of critical habitat within the West Side Athabasca Range, particularly given the lengthy timeline for regeneration to mature forest.
Therefore, the AER directed, as a condition of approval, that TransCanada prepare and implement habitat restoration in the West Side Athabasca Range to offset the effects of the Project.
Conclusion
The AER determined that:
(a) the impacts of the Project, after implementation of TransCanada’s commitments and mitigation plans and the conditions imposed by the AER, can be mitigated to a level consistent with responsible development; and
(b) the Project was needed to provide for the efficient, orderly, and environmentally responsible development of Alberta’s energy resources.
The AER, therefore, approved the Project with conditions.
