Pipelines – Route Hearing
In this letter decision, the CER found that, subject to the Phase 2 and 3 Hearings, the route proposed by Trans Mountain Pipeline ULC (“Trans Mountain”) would be the best possible detailed route of the Trans Mountain Expansion Project (“TMEP”), and the methods and timing of constructing the pipeline were the most appropriate, subject to the commitments made by Trans Mountain and continued compliance with the Certificate conditions.
Introduction and Background
On 16 December 2013, Trans Mountain applied to the National Energy Board under section 52 of the National Energy Board Act (“NEB Act”) for a Certificate authorizing the construction and operation of the TMEP.
The TMEP was approved by Order in Council (“OIC”) P.C. 2016-1069 in November 2016. The NEB issued Certificate OC-064 and began work on various regulatory processes, including the 2017/2018 detailed route approval process.
On August 30, 2018, the Federal Court of Appeal (“FCA”) issued its decision Tsleil-Waututh Nation v. Canada (Attorney General)1 (“FCA Decision”), which set aside OIC P.C. 2016-1069 and remitted the matter back to the GIC for appropriate action.
Following a second public hearing process (“the Reconsideration”), the NEB issued its MH-052-2018 Reconsideration Report in February 2019. Canada’s Crown Consultation and Accommodation Report were issued in June 2019. The Governor in Council (“GIC”) approved the TMEP again in June 2019 via OIC P.C. 2019-820 and the NEB subsequently issued Certificate OC-065 with 156 conditions. On 19 July 2019, following a public comment process, the NEB set out how it would resume the TMEP detailed route approval process.
In response to various statements of opposition (“SOOs”) filed by the S’ólh Téméxw Stewardship Alliance (“STSA”), the CER granted the STSA a hearing. The hearing had a geographic focus on the route segments to which the STSA noted its opposition in its SOOs.
Change in Geographic Scope
Following the withdrawal of all STSA member first nations as signatories to the STSA SOOs except Semá:th, and the STSA’s request that Semá:th substitute it as the SOO Filer, Trans Mountain filed a notice of motion seeking a reduced geographic focus for the hearing. The CER approved the motion from Trans Mountain to reduce the geographic scope from the STSA SOO lands to the Project Route, described below.
Introduction to the Proposed TMEP on the Project Route
The scope of the hearing was limited to Kilometre Post (“KP”) 1099.19 to KP 1120.52 (“Project Route”).
Trans Mountain’s Consultation
Certificate OC-065, issued by the CER imposed several conditions requiring Trans Mountain to consult with potentially affected Indigenous peoples, including Semá:th. Semá:th argued that Trans Mountain did not adequately consult Semá:th when developing the Project Route. Semá:th further voiced concerns regarding Trans Mountain’s consultation more generally.
Route, Methods and Timing of Construction
Trans Mountain’s Routing Criteria for the TMEP
Trans Mountain stated that its pipeline corridor, as authorized in Certificate OC-065 for the TMEP, was developed based on a standard set of routing criteria designed to enable the safe installation of the pipeline, and to reinforce the protection and integrity of the pipeline while minimizing the adverse effects of pipeline installation and operation to the extent practicable. Trans Mountain stated that determining routing feasibility for the entire TMEP included consideration of a range of factors, including constructability; long-term geotechnical stability; and environmental, cultural, and socio-economic suitability.
In its Reconsideration Report, the NEB found that Trans Mountain’s route selection process, route selection criteria, and level of detail for its alternative means assessment were appropriate. The NEB further found that the alignment of the majority of the proposed pipeline route alongside, and contiguous to, existing linear disturbances would be appropriate. The NEB noted this would minimize the environmental and socio-economic impacts of the TMEP.
Views of Semá:th
The STSA/Semá:th stated that it placed specific reliance on two major documents in their written evidence: the Integrated Cultural Assessment (“ICA”) and the Stó:lō Heritage Policy Manual, and submitted that both of these documents should be respected and relied upon by the CER in adjudicating whether the Project Route is the best route. The STSA/Semá:th stated that the ICA concluded that the TMEP would pose a significant risk and represents a significant threat to the cultural integrity and survival of core relationships at the heart of Stó:lō worldview, identity, and well-being.
The STSA/Semá:th submitted that the TMEP would affect the claimed Indigenous title and established Indigenous rights of the Stó:lō.
The STSA/Semá:th submitted that the TMEP’s interference with or impact on Stó:lō Indigenous rights, interests, cultural and spiritual practices, and heritage sites must factor into the CER’s analysis of whether the Project Route is the best route.
Regarding routing principles, heritage resource, and mitigation measures, Semá:th stated that, through its representation by the STSA, it had expressed its desire for specific and different mitigation measures beyond those proposed by Trans Mountain in the Resource Specific Mitigation Table (“RSMTs”).
Semá:th stated that Trans Mountain appeared to have selectively weighed the Stó:lō stewardship concerns and site-specific mitigation requirements detailed in the Stó:lō Policies. The Stó:lō Policies had been made available to Trans Mountain throughout its route planning process. Semá:th stated that Trans Mountain did not provide Semá:th with an avenue to understand how its concerns for the protection of Stó:lō cultural sites have been factored into Trans Mountain’s decision-making. Semá:th argued that the proposed detailed route and the method and timing of construction are not reflective of the Stó:lō Heritage Policy Manual framework and, therefore, the route as planned should not be approved.
Views of Trans Mountain
Trans Mountain stated that Semá:th relied on the 2014 ICA, which identified concerns about the TMEP’s alleged impacts on the Stó:lō Nations. Trans Mountain stated that the ICA was filed as part of the original Certificate hearing for the TMEP and the impacts identified in that report were carefully considered by the NEB, the Government of Canada and, ultimately, the GIC in its decision to approve the TMEP.
Trans Mountain stated that the concerns expressed by Semá:th relate to the overall impacts of the TMEP on Semá:th’s rights and interests. Trans Mountain stated that these impacts and associated mitigations had already been considered and addressed in the GIC’s decision to approve the TMEP. Trans Mountain further stated that Semá:th’s general concerns about the TMEP’s impacts had also been addressed through the conditions imposed on Trans Mountain in Certificate OC-065 and related approvals.
Regarding routing principles, heritage resource, and mitigation measures, Trans Mountain stated that its focus was on minimizing the TMEP’s adverse effects. This would facilitate minimizing its contribution to cumulative effects. It indicated that its proposed detailed route and construction methods and mitigation through the Project Route achieve the objective of minimizing the TMEP’s adverse effects largely through paralleling the existing TMPL and other linear features to the extent practicable and implementing a comprehensive suite of mitigation measures.
Trans Mountain argued that it presented uncontested evidence that the Project Route aligned with Trans Mountain’s routing principles, which were previously acknowledged and accepted by the NEB in the Certificate hearings.
CER Decision in Hearing MH-027-2020
The CER found Trans Mountain’s consultation with Semá:th and the STSA in respect of the Project Route and the methods and timing of construction was adequate. Trans Mountain began consultations with potentially affected Indigenous communities, including Semá:th, in the planning stages of the TMEP, as required by the Filing Manual. Submissions demonstrated that consultations continued after GIC approval of the TMEP and through the MH-027-2020 hearing process.
The CER found that Trans Mountain’s consultations with different organizations that represented the interests of the Semá:th were appropriate, recognizing the specific requests of the individuals and organizations with whom it consulted. As the various organizations indicated that they represented the interests of several Indigenous peoples, including Semá:th, it was reasonable for Trans Mountain to engage with those organizations and rely on the information they provided.
The CER noted that numerous conditions in Certificate OC-065 would have ongoing requirements for consultation with Indigenous peoples during construction and throughout the lifecycle of the TMEP. This would include consultation on several protection and mitigation plans in the environmental protection plans (“EPPs”), as well as emergency response plans. The NEB also imposed Conditions 96 and 146 requiring Trans Mountain to report to the NEB on its consultation with Indigenous peoples during construction and through the first five years of operations.
Route, and Methods and Timing of Construction
The CER found that, subject to the Phase 2 and 3 Hearings and ongoing compliance with the Certificate OC-065 conditions, the proposed project Route would be the best possible route for the TMEP, and the proposed methods and timing for constructing the TMEP pipeline would be the most appropriate.
The CER considered the submissions relating to traditional land and resource use while noting that the detailed route approval process established by the CER Act is not intended to reconsider matters adjudicated in the Certificate hearings. The Reconsideration Report stated that, during construction and routine operations, the TMEP would not likely cause significant adverse impacts on the environment, resources used for traditional purposes by Indigenous communities, or the ability of Indigenous communities to use the environment or resources for traditional purposes.
The CER found that no new potential impacts relating to the detailed route were identified and noted that the Certificate OC-065 conditions contain requirements for available and applicable traditional land and resource use to be considered.
Regarding routing principles, heritage resource and mitigation measures, the CER found the Trans Mountain applied routing criteria appropriate in the circumstances.
In the Stó:lō Heritage Policy Manual, Semá:th identified that avoidance would be the preferred and, in some cases, required mitigation method regarding potential impacts to Stó:lō heritage resources. During the sharing of oral Indigenous knowledge, it was expressed that the TMEP must avoid the river, the mountain, and the aquifer. The CER found that avoidance can be achieved through the chosen routing options or construction methods. The CER also noted that, where avoidance is not possible, Trans Mountain would rely on mitigation tools based on best practices and which have been reviewed and approved during the Certificate hearings and were in practice during TMEP construction.
Having assessed all of the evidence, the CER was of the view that there had been adequate consultation and accommodation for the purpose of this detailed route decision. The CER found that the route proposed by Trans Mountain for those lands that were not subject to further TMEP Hearings is the best possible detailed route of the pipeline, and the methods and timing for constructing the pipeline would be the most appropriate, subject to the commitments made by Trans Mountain and ongoing compliance with the OC-065 Certificate conditions.