Pipeline – Routing
Background
The Trans Mountain Expansion Project (“TMEP”) includes twinning the existing 1,147-kilometre-long Trans Mountain Pipeline (“TMPL”) system in Alberta and British Columbia (“BC”) with approximately 981 kilometres of new buried pipeline; new and modified facilities, such as pump stations and additional tanker loading facilities at the Westridge Marine Terminal in Burnaby; and reactivating 193 kilometres of the existing pipeline between Edmonton and Burnaby. Trans Mountain Pipeline ULC (“Trans Mountain”) requested approval of a 150-metre-wide corridor for the TMEP pipeline’s general route.
The CER briefly outlined the procedural history of the TMEP, including the process for landowners and Indigenous peoples who filed statements of opposition (“SOOs”) involving the proposed detailed route. (Please see the summary of Trans Mountain Pipeline ULC Trans Mountain Expansion Project – Review of Decision MH-003-2018 Issued to 1054408 BC Ltd. in Detailed Route Hearing (CER Decision MH-001-2020), also included in the April 2020 Decisions issue for the complete procedural history.)
Detailed Route Hearings MH-002-2020 and MH-003-2020
In 2017, KGHM Ajax Mining Inc. (“KGHM”) and Sugarloaf Ranches Ltd. (“Sugarloaf”) were each granted a detailed route hearing. A hearing process was held, including oral portions in May of 2018.
In 2019, KGHM/Sugarloaf filed SOOs seeking to resume their detailed route hearings. In their SOOs, KGHM/Sugarloaf did not describe a material change in circumstances since the 2017/18 detailed route approval process was held.
The CER decided that it would not permit the filing of additional evidence given that no material change in circumstances was established, but that it would hear oral final argument from the parties in Calgary on 3 February 2020, to allow the parties the opportunity to persuade the current decision-makers.
Introduction to the Proposed TMEP on the Lands
The CER set out the details regarding the lands (“Lands”) subject to this detailed route hearing. It noted that Trans Mountain proposed to route approximately 11.7 kilometres of new pipeline across the Lands, as illustrated in Figure 1 below (in blue/yellow). The figure also illustrated KGHM/Sugarloaf’s proposed alternate route (in pink).
Trans Mountain’s submissions
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The TMEP corridor deviates from the TMPL on the Lands to circumvent Jacko Lake.
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The proposed detailed route minimizes the length of the new easement before returning to the TMPL easement.
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The proposed detailed route is the best possible detailed route through the Lands since it minimizes cultural and environmental impacts by providing a buffer area between the TMEP and Jacko Lake.
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The final construction schedule will be determined by, among other things, regulatory approval, seasonal restrictions, and contractor availability.
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Trans Mountain proposes to employ conventional open-cut construction on the Lands and will work with KGHM/Sugarloaf to establish access plans to minimize disruption from construction activities.
KGHM/Sugarloaf’s Submissions
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KGHM’s proposed Ajax Mine Project includes an open-pit copper/gold mine that, if approved, is expected to process 65,000 tonnes of ore per day for export over a mine life of 23 years. The Ajax Mine Project includes a tailings storage facility (“TSF”) designed to permanently store approximately 440 million tonnes of tailings generated during mine operations. The TSF would be comprised of four earth-rockfill dams or embankments to contain the tailings and water.
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The alternate route is a better route through the Lands than Trans Mountain’s proposed detailed route because it avoids the future location of a TSF for the Ajax Mine Project, while also circumventing Jacko Lake.
Is Trans Mountain’s Proposed Detailed Route for the TMEP Pipeline the Best Possible Detailed Route?
The CER’s Decision on the Status of the Ajax Mine Project
The CER noted the status of the Ajax Mine Project is an important routing consideration because the proposed detailed route would traverse the location identified for the TSF, an important part of the Ajax Mine Project.
The CER recognized that the Ajax Mine Project is well defined; it was apparent that a significant amount of studies and effort had been invested to define and advance the proposed project. The CER recognized KGHM/Sugarloaf’s submission that the Ajax Mine Project might obtain the necessary regulatory approvals and proceed at some time in the future, given the value of the resource proposed to be developed.
However, the CER was not convinced of when, or if, and under what conditions, the Ajax Mine Project could or would proceed. The CER noted that the BC Ministers of Environment and Climate Change Strategy (“ECCS”) and Energy, Mines and Petroleum (“EMP”) declined to issue an Environmental Assessment (“EA”) Certificate for the project. The federal government found that the project is likely to result in significant adverse environmental effects and referred it back to Fisheries and Oceans Canada and Natural Resources Canada to determine whether those effects can be justified in the circumstances, pursuant to section 37 of the Canadian Environmental Assessment Act, 2012.
The CER was not convinced of the certainty of the TSF’s ultimate location. While the opinion of KGHM/Sugarloaf’s witness was that the location of the TSF would not change, and that the location of the TSF was not an issue for the Stk’emlupsemc te Secwepemc of the Secwepemc Nation (“SSN”) or the project’s regulators, there was no evidence to support this claim. Further, KGHM/Sugarloaf provided no evidence of a material change in circumstances that would suggest that the decisions by BC and federal authorities are being reconsidered, or approved, in their current form, in the foreseeable future. For these reasons, the CER was of the view that the Ajax Mine Project is speculative at this time.
Did Trans Mountain Apply Its Routing Criteria Appropriately?
The CER outlined Trans Mountain’s routing criteria, and acknowledged the NEB’s recommendation regarding, and the Governor in Council’s (“GIC”) approval of that routing criteria.
When viewed as a whole, and given the speculative nature of the Ajax Mine Project, the CER decided that Trans Mountain appropriately applied the approved routing criteria in locating the proposed detailed route on the Lands.
Should the CER Consider an Alternate Route Outside the Approved Corridor?
The CER considered Trans Mountain’s submissions that the TMEP corridor was approved by the Federal Cabinet following a Certificate Hearing, and that changing the corridor from the GIC approved corridor would require a variance application, resulting in a CER regulatory proceeding. Such a process would require new engagement with Indigenous peoples and affected landowners, and public notices. Following any process, the matter would also require GIC approval.
Notwithstanding those submissions, the CER agreed with KGHM/Sugarloaf that the CER could consider an alternate route outside of the approved corridor. The CER would not be in a position to approve a detailed route outside of the approved corridor. However, evidence of an alternate route outside of the approved corridor falls within the scope of the issue of the best possible detailed route of the pipeline, to the extent that it may assist the CER in determining whether the applied-for detailed route is the best possible detailed route. Therefore, the CER considered KGHM/Sugarloaf’s proposed alternate route for the purpose of assessing Trans Mountain’s proposed detailed route.
The CER agreed with KGHM/Sugarloaf’s submission that, should the CER determine that Trans Mountain’s proposed detailed route is not the best possible detailed route, then any delay or inconvenience associated with a variance application is a burden that Trans Mountain must bear.
Is the Proposed Detailed Route Superior to the Alternate Route?
Having found that the Ajax Mining Project is speculative, and that the location of any future TSF is uncertain, the CER decided that it is preferable for the TMEP to twin the TMPL to the extent possible, rather than to avoid the proposed TSF site.
The CER was of the view that KGHM/Sugarloaf’s alternate route was designed essentially to avoid the TSF associated with the Ajax Mine Project. However, the CER also considered whether other features of the alternate route demonstrate that Trans Mountain’s proposed detailed route is not the best possible detailed route across the Lands.
Having assessed the proposed and alternate routes, including balancing their respective advantages and disadvantages, the CER decided that Trans Mountain’s proposed detailed route is superior to the alternate route. The proposed detailed route follows the approved routing criteria, including paralleling more of the existing TMPL than the alternate. In addition, the CER was swayed by the comparison provided in Trans Mountain’s reply evidence showing that the proposed detailed route involves fewer road crossings and crosses fewer woodlots. The CER placed considerable weight on the fact that the proposed detailed route has potential impacts on fewer sites identified as important by Indigenous peoples and wildlife habitat areas for species at risk.
The CER noted that both parties appeared to agree that, if the Ajax Mine Project were to proceed in the future, the TMEP would need to be relocated. The CER accepted that this hypothetical scenario is a possibility, and saw value in attempting to avoid the impact associated with having to relocate the pipeline. However, the CER was of the view that such a scenario cannot be avoided with reasonable certainty at this time, given the speculative nature of the Ajax Mine Project. The CER agreed with Trans Mountain that it would not be prudent to route a pipeline to avoid a speculative mining project with the possibility that such a route, involving greenfield development with its associated environmental and socio-economic impacts, may turn out to be unnecessary if the Ajax Mine Project were to change or not proceed.
Further, the CER was of the view that, even if the speculative Ajax Mine Project were to occur in the future, the presence of the TMEP would not prevent it from proceeding, and it does not prevent the TSF from being located in the current proposed site. A commercial arrangement could be made, and the pipeline could be relocated, if necessary, consistent with the past relocation of the TMPL related to the Afton Mine. The CER noted that, if the Ajax Mine Project were to proceed and the TSF was to be located where it is presently proposed, the existing TMPL, which is currently situated at that location, would need to be relocated in any event.
The CER’s Overall Decision on Whether the Proposed Detailed Route Is the Best Possible Detailed Route
Having considered the record, including Trans Mountain’s commitments, the CER decided that Trans Mountain’s proposed detailed route is the best possible detailed route across the Lands.
Are Trans Mountain’s Proposed Methods and Timing of Constructing the TMEP Pipeline the Most Appropriate?
Having considered all of the evidence, including Trans Mountain’s commitments, the CER decided that Trans Mountain’s proposed methods and timing of constructing the TMEP pipeline across the Lands are the most appropriate.
Conclusion
Having decided that Trans Mountain’s proposed detailed route is the best possible detailed route on the Lands, and that the proposed methods and timing of construction are the most appropriate, the CER approved the Plan Profile and Book of Reference (“PPBoR”) for the Lands.
The CER noted that any future order approving the PPBoR for the Lands would include conditions requiring Trans Mountain to list and fulfill the commitments it made in the course of these detailed route hearings and to update its alignment sheets.
