How we got here
The Government of Canada approved the Trans Mountain Expansion (TMX) project in November 2016, based on three key considerations.
First, it agreed with the National Energy Board’s (now the Canada Energy Regulator or CER) conclusion that the project — which would almost triple the pipeline’s capacity to move western Canadian oil between Edmonton, Alberta and Burnaby, British Columbia — was in the public interest. It was determined that the expansion would create thousands of good jobs during construction, open access to new markets abroad and ensure Canada received better prices for a valuable resource — all while generating new revenues for all levels of government to fund the things that matter most to Canadians.
Second, the government had strengthened the way the country was reviewing major resource projects by introducing five new guiding principles to cover proposals already in the queue. These five principles include: expanding public engagement and Indigenous consultations, assessing upstream greenhouse gas emissions and making decisions on evidence-based science.
Third, the government had previously announced a five-year, $1.5-billion Oceans Protection Plan — the largest investment ever to protect Canada’s coasts and waterways. This ongoing work is making our marine safety system stronger, and our coasts and marine species better protected.
As a result of this decision, the government established an Indigenous Advisory and Monitoring Committee to help oversee the safety of TMX through its entire life cycle.
Changing Public Environment
In April 2018, the owner of the pipeline — Kinder Morgan — announced that it was suspending all non-essential work on the project due to political uncertainty in British Columbia.
The government recognized that this made the project too risky for a private-sector company to manage. As a result, in May 2018 it announced that it had negotiated a fair-market price to purchase the Trans Mountain pipeline and its related assets.
Federal Court of Appeal
On August 30, 2018, the Federal Court of Appeal (FCA) quashed the government’s approval of the project on two grounds: the NEB (now CER) had erred in its decision to exclude consideration of the environmental impact of project-related marine shipping; and Canada had failed to properly execute its legal duty to consult with Indigenous peoples. The FCA’s decision outlined three broad flaws in the 2016 consultations:
- officials simply took notes of Indigenous groups’ concerns but did not engage in meaningful, two-way dialogue;
- officials appeared unwilling to depart from the NEB’s (now CER) findings and conditions and to consider other accommodations when responding to concerns of Indigenous groups; and
- Canada had the view that it was unable to amend or impose additional conditions on Trans Mountain Corporation (TMC) to address the concerns of Indigenous groups about the impacts on their rights.
The government accepted the FCA’s findings and followed its guidance.
The Government’s Response
On September 21, 2018, the government announced that it had instructed the NEB (now CER) to reconsider its recommendation in support of TMX by taking into account the environmental effects of project-related marine shipping, in accordance with the FCA’s direction.
On October 3, 2018, the government also relaunched its consultations with Indigenous groups potentially impacted by the project. This included establishing government consultation teams that were more than double the size of the teams in 2016, with expertise from across the government. The concerns raised by Indigenous communities were communicated regularly to decision makers, including ministers, to ensure consultation teams were empowered to discuss and propose robust accommodation measures.
In addition, the government appointed former Supreme Court of Canada Justice, the Honourable Frank Iacobucci, as Federal Representative to oversee and provide direction to the consultation process. This also included hosting a number of roundtables in late 2018 — with 120 representatives from 69 Indigenous communities — to discuss the approach to consultations.
The Honourable Amarjeet Sohi, Minister of Natural Resources, also met with more than 65 Indigenous groups along the project route.
The NEB (now CER) published its Reconsideration Report on February 22, 2019 — in accordance with the FCA’s direction for a focused review. The NEB’s report found that TMX is in the Canadian public interest and should be approved, subject to 156 binding conditions. In addition, the NEB made 16 recommendations to the government related to marine shipping.
On April 18, 2019, the government announced that, in order to continue its Crown consultations, it was extending its decision-making timeline from the end of May to June 18, 2019. This action responded to requests from Indigenous communities for more time to complete the consultations. The resulting Crown Consultation and Accommodation Report concludes that Canada had met its duty to consult and addressed the issues identified in the FCA’s decision.
All of these measures set the stage for Cabinet to make its decision.
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