Gas – Facilities
Application
Trans Mountain Pipeline ULC (“Trans Mountain”) applied for approval of a deviation (“Deviation Application”) to the approved plan, profile and book of reference (“PPBoR”) in respect of certain lands in Segment 5.3 of the Trans Mountain Expansion Project (“TMEP”). Trans Mountain also requested relief from the requirement to deposit the certified PPBoR before constructing the deviation.
Decision
The CER approved the Deviation Application, including Trans Mountain’s requested exemption from the requirement to deposit the PPBoR, and issued Order AO-003-OPL-003-2020 reflecting this approval.
Decision
The route subject to this proceeding (the “2023 Revised Route”) concerns 1.3 kilometers (“km”) of the TMEP pipeline in the Pípsell Area. The deviation remains entirely within the approved pipeline corridor on privately owned land. Trans Mountain submitted that the deviation is required to accommodate a change in construction methodology due to significant technical challenges encountered with micro-tunneling along a portion of the previously approved route in that section. The construction method will be changed from micro-tunneling to a combination of horizontal directional drilling (“HDD”) and conventional open trench.
Engagement
The landowners impacted by the deviation confirmed that they had no concerns with the 2023 Revised Route. The deviation is located within the traditional territory of the Stk’emlúpsemc te Secwépemc Nation (“SSN”). The SSN expressed concerns regarding deviating from entirely trenchless construction methods in the Pípsell Corridor.
Trans Mountain stated that the proposed mitigation measures to avoid or minimize potential environmental, traditional land use, and cultural impacts, as well as its proposed combination of HDD and conventional open trench construction, would reasonably avoid or minimize impacts on the lands subject to the 2023 Revised Route. Trans Mountain submitted that approximately 80 percent of construction within the approximately 4.2-km-long Pípsell Corridor would be completed using trenchless construction, minimizing disturbance of the ground and the traditional territory of the SSN.
Relief From the Requirement to Deposit the Certified PPBoR Before Construction
To avoid further construction delays on the TMEP, Trans Mountain requested relief from the requirement in s 211 of the Canadian Energy Regulator Act (“CER Act”) to register in advance the certified PPBoR since the center line of the deviation did not, at any point, extend more than 60 meters from the route approved in the PPBoR.
CER Findings
In approving the application, the CER considered several factors, including the impact on the rights and interests of Indigenous Peoples, the environmental, socio-economic and engineering factors and, the engagement and impact mitigation.
The Pípsell Area holds profound cultural and spiritual significance to SSN and Trans Mountain agreed to attempt to construct a 4.2-km segment of the TMEP in this area using micro-tunneling, to minimize surface disturbance. Trans Mountain tried unsuccessfully to overcome the challenges encountered in a 1.3-km section originally identified for micro-tunneling resulting in additional $32 million in costs and extended construction timelines by several months.
The CER was satisfied that any environmental or socio-economic impacts of the deviation will be sufficiently addressed by the environmental and socio-economic mitigation measures identified for the TMEP. The CER noted that the alternative HDD method, applied for by Trans Mountain, is a mitigation measure aimed at reducing surface disturbance.
Based on Trans Mountain’s robust engagement efforts and the CER’s hearing process, the CER found that the duty to consult with Indigenous Peoples and accommodate their interests was met. The CER also considered its duties and obligations under the United Nations Declaration on the Rights of Indigenous Peoples Act and the CER’s commitment to Reconciliation and found that any requirements thereunder were adequately addressed. The CER also assessed the effects of the Deviation Application on the rights of Indigenous Peoples in the context of its technical findings and determined that any impacts can be meaningfully addressed, based on the mitigation measures identified in the Deviation Application and through conditions imposed by earlier TMEP regulatory processes.
