Facilities – Pipelines – Indigenous Consultation
The Westridge Delivery Line Relocation Application
On 21 December 2017, Trans Mountain Pipeline ULC (“Trans Mountain”) filed an application with the National Energy Board (“NEB”) for an exemption pursuant to section 58 of the National Energy Board Act (“NEB Act”) to proceed with the Westridge Delivery Line Relocation (“WDLR”).
The CER noted that the WDLR involves relocating an existing operating delivery line that currently transports oil from the Burnaby Terminal to the Westridge Marine Terminal (“WMT”), via a route through the City of Burnaby. Trans Mountain sought to relocate this delivery line by constructing a new 3.6 kilometre-long, 30 inch outside diameter delivery line between the Burnaby Terminal and the WMT within a tunnel through Lhekw’lhúkw’aytn (Burnaby Mountain). The WDLR delivery line within the tunnel would be adjacent to the two other delivery lines authorized by Certificate of Public Convenience and Necessity (“Certificate”) OC-065 issued for the Trans Mountain Expansion Project (“TMEP”). The tunnel itself was also approved by OC-065. Temporary physical disturbance caused by the WDLR is anticipated only at the proposed entry and exit points for the tunnel, both of which are within the fence lines of Trans Mountain-owned, industrial-zoned land at the Burnaby Terminal and WMT, respectively.
Subject to any approval of the WDLR, and meeting applicable conditions, Trans Mountain committed to decommissioning its existing delivery line once the WDLR is in service.
The Decision of the CER and Summary of Reasons for Approving the WDLR Application
The CER approved the WDLR. In approving the WDLR, the CER took into consideration the overall importance of Burnaby Mountain and the surrounding area for the traditional use of Indigenous peoples. The CER determined that, in the circumstances of the WDLR, the surface disturbance will occur entirely on fenced industrial land. The current use of this land is incompatible with traditional use by Indigenous peoples.
The CER was satisfied with Trans Mountain’s system-wide risk assessment and found that the WDLR work will not cause environmental degradation in the traditional territories of Indigenous peoples.
The WDLR will not result in an increase in the approved volume of transported oil as it is a relocation of an existing delivery line. Its location through Burnaby Mountain is responsive to previous feedback from residents requesting that the delivery line be moved from Burnaby streets.
The CER noted that Trans Mountain committed to apply with the CER to decommission the existing delivery line through the City of Burnaby once the WDLR is operational.
The CER found that the overall benefits of the WDLR outweigh the burdens and that approval of the WDLR is in the public interest.
The MH-048-2018 Hearing Process
Notice of this application was provided to those Indigenous peoples whose traditional territory is potentially affected. Having received comments on the application from the Squamish Nation (“Squamish”), the NEB established a written hearing process on 18 May 2018.
On 31 August 2018, following the Federal Court of Appeal’s (“FCA”) 30 August 2018 decision in Tsleil-Waututh Nation v. Canada (Attorney General) to set aside the TMEP’s approval, the NEB stated that ongoing processes directly related to the TMEP would cease. While the WDLR is a separate application from the TMEP, the same tunnel would be used for both the WDLR delivery line and the two TMEP delivery lines. Some of the conditions imposed on the TMEP have practical application to the WDLR, given that the same tunnel is being used.
On 22 February 2019, the NEB issued its MH-052-2018 Reconsideration Report concerning the TMEP. Subsequently, on 18 June 2019, the Governor in Council approved the TMEP. Upon the Governor in Council’s order, the NEB issued Certificate OC-065 for the TMEP on 21 June 2019.
On 21 August 2019, Trans Mountain filed a letter requesting that the WDLR hearing be reinstated at the stage it was at on 10 October 2018, without the addition of any new process steps. On 2 January 2020, the CER issued Procedural Update No. 2, outlining the remaining hearing steps to be followed.
Parties raised several issues that were addressed through the TMEP Certificate hearing and were not in the scope of the WDLR application. These matters included overall concerns about the TMEP, emergency response for spills of diluted bitumen in a marine environment, and booming of vessels.
Trans Mountain’s Consultation With Indigenous Peoples
Concerns were raised regarding the TMEP, lack of opportunity for the application of Traditional Ecological Knowledge (“TEK”), and a lack of necessary information provided by Trans Mountain.
The CER found that Trans Mountain’s consultation with Indigenous peoples about the WDLR has been sufficient given the scale and scope of the project, and its location within a tunnel and on private, industrial property on both ends. The CER noted that consultation on the tunnel was considered in detail in the TMEP Certificate hearing.
With respect to the concern raised by Squamish about not receiving adequate information, the CER was of the view that Trans Mountain made sufficient information available to Squamish regarding the WDLR. Squamish also had the opportunity to ask questions and receive responses about the WDLR and to file evidence during the hearing process. The NEB also directed a number of information requests (“IRs”) to Trans Mountain regarding issues of concern to Indigenous communities.
Concerning TEK information, the CER accepted that the S’ólh Téméxw Stewardship Alliance (“STSA”) has historic and current traditional uses on lands in this region. However, the areas of temporary disturbance associated with WDLR construction are privately owned, fenced, industrial lands that cannot be reasonably used for traditional activities presently or in the foreseeable future.
Impacts on Traditional Use, Cultural Practices, and Rights of Indigenous Peoples
The CER accepted Trans Mountain’s evidence that the physical disturbance of the WDLR would be within the area of disturbance caused by construction of the tunnel and two other delivery lines for the TMEP. Squamish and the STSA provided no credible evidence that impacts from the WDLR would extend to areas of traditional use.
Trans Mountain’s Consultation With Indigenous Peoples for the WDLR
The CER found that Trans Mountain’s consultation was adequate, given the limited scale and impacts of the WDLR.
Notice and Sufficiency of Information About the WDLR Being Provided to Indigenous Peoples
The CER noted that Trans Mountain gave information and notice about the WDLR to both Squamish and the STSA, as well as other potentially impacted Indigenous peoples. The NEB provided additional notice by sending out a separate notification letter and information. A Hearing Order was issued, and both Squamish and the STSA fully participated in the NEB’s process. The NEB provided participant funding to assist individuals and groups with their participation in the hearing. Indigenous peoples accounted for 100 percent of the funding awarded.
With respect to the issue raised by Squamish about the Crown’s engagement in the WDLR hearing process, the CER noted that it was sufficiently clear that the Crown was not directly participating as government departments were not parties in the hearing process. In response to a Squamish IR, Trans Mountain also stated that, in 2015, the Crown said it relies on NEB review processes to the extent possible to fulfill the duty to consult.
Overall, the CER found there was adequate notice and information provided to Squamish, and that it was sufficiently clear that the NEB’s hearing process was intended to constitute Crown consultation and accommodation.
The CER’s Assessment Process and Participation Opportunities for Indigenous Peoples
The WDLR hearing process was an integral part of Crown consultation and could be relied on fully to satisfy the duty to consult. The hearing process itself was put in place in response to concerns raised by Squamish.
Given the size and scope of the WDLR (construction and operation of a delivery line within a tunnel and on private industrial property at each end), the CER found that Trans Mountain’s consultation and the completed hearing process fully discharged the Crown’s duty to consult.
Consideration of Indigenous Rights and Interests and the Degree of Impact on Those Rights and Interests
With respect to the seriousness of the potential adverse impacts on the rights and interests of Squamish and the STSA, the CER found the impacts to be at the lower end of the spectrum. The CER noted that there was no evidence of traditional use within the fenced land owned by Trans Mountain within which WDLR construction would occur.
Mitigation, Commitments, and Conditions
The CER noted that while the WDLR application is separate from the TMEP, given past Trans Mountain commitments and the applicability of relevant TMEP Certificate conditions to the WDLR, those conditions were relevant to this proceeding. In addition, the CER noted that mitigation measures with respect to leak detection and mitigation within the tunnel related to the two new delivery lines would also apply to the third (WDLR) delivery line in the tunnel.
Oil Release from the WDLR Delivery Line
The CER accepted Trans Mountain’s evidence that, in the unlikely event of a leak from the WDLR delivery line, the fibre optic leak detection systems would provide the detection, location, and confirmation capability to allow for a shutdown of the line in a timely manner to minimize the potential consequences of a leak. The CER also accepted Trans Mountain’s evidence that monitoring and inspecting the delivery lines in accordance with Trans Mountain’s Integrity Management Program for all threats, and taking action before they present a risk of failure, will reduce the likelihood of a leak.
In comparing the updated risk results, including the WDLR to the risk results provided for the two TMEP delivery lines, the CER found that there is no material increase in risk as a result of adding the WDLR delivery line within the tunnel. The CER also found that there is no increased level of risk or impact arising from the proposed relocation of the existing delivery line relative to its current location beneath residential streets.
Given the combination of the amount contracted and the requirement for segregation of product, the CER found that the size of the WDLR delivery line is appropriate.
Discontinuance of the Delivery Line Being Replaced
In deciding on the appropriate method of decommissioning, the CER noted that it expects Trans Mountain to consult with the parties to this proceeding and all those potentially affected. The results of Trans Mountain’s consultation should form part of the future decommissioning application.
The CER imposed a condition requiring Trans Mountain to file a letter to confirm it has filed a decommissioning application, within seven days of submitting it. Trans Mountain must file this confirmation letter within 24 months of being granted the final Leave to Open of the WDLR.
Overall Weighing of Positive and Negative Impacts of the WDLR
The CER was satisfied that the additional line within the tunnel results in no material increase in risk. Construction impacts would be temporary and will occur solely on Trans Mountain-owned and fenced industrial land, which is not compatible with Indigenous traditional use.
The WDLR is a relocation of an existing operating delivery line and will not result in increased volume. This is a needed line that will provide benefit to the operational requirements of Trans Mountain and its shippers. The relocation of the delivery line is also responsive to the input of the residents of the City of Burnaby.
For all of these reasons, the potential benefits of the WDLR outweigh the minimal potential negative impacts and, therefore, the CER approved the WDLR.