Canada Energy Regulator Amended Conditions
As part of the re-initiated Phase III consultations, consultation teams had an expanded mandate to discuss specific accommodation measures to address the concerns of potentially affected Indigenous groups. The government has put forward eight accommodation measures that focus on building capacity and long-term relationships, marine safety, spill prevention, response capacity, cumulative effects, fish and fish habitat, and quieter vessels, as well as further terrestrial studies.
- The Salish Sea Initiative addresses to cumulative effects, including impacts on the Southern Resident Killer Whale (SRKW). It is a long-term investment strategy to support First Nations in monitoring and evaluating the impacts of human activities on their local ecosystem.
- The Co-Developing Community Response (CDCR) addresses Indigenous communities’ concerns about the risks of increased project-related tanker traffic to marine activities, the environment and culturally important and sacred sites in their traditional territories. Through CDCR, the government and Indigenous communities will co-develop response capacity at the community level to support a meaningful role for Indigenous communities in the broader marine response system. The implementation of this accommodation measure will facilitate a tailored approach to meet the needs of individual communities.
- The Enhanced Maritime Situational Awareness Initiative, launched as part of the Oceans Protection Plan, is a web-based system that provides Indigenous and coastal communities with access to near real-time maritime information, such as vessel traffic, weather and other key maritime data. The government will work with interested Indigenous groups in the project area to identify three additional pilot communities that will act as hubs to coordinate feedback from all participating communities.
- The Marine Safety Equipment and Training Initiative responds to concerns regarding the safety risk posed by increased tanker traffic interacting with Indigenous marine activities along the tanker route and shipping lanes. It will support enhanced safety for Indigenous vessels in these areas by providing funding for safety equipment and training. Specific program parameters will be co-developed in partnership with Indigenous communities in the project area.
- The Terrestrial Cumulative Effects Initiative will respond to concerns regarding the cumulative effects from development — including the impacts of this project. It will also enable the co-development of a cumulative effects framework focused on understanding the current state of the environment and monitoring changes in response to natural processes. For example, the findings from this initiative will inform projects to restore fish habitat or analyze the local watershed.
- The Aquatic Habitat Restoration Fund will increase capacity within communities to protect and restore aquatic habitats impacted by the project. The goal is to restore fish habitats in ecological areas that have the greatest impact on overall fish stock.
- The Quiet Vessel Initiative will reduce vessel noise in the Salish Sea in order to protect the marine environment and vulnerable marine mammals — including the SRKW. This initiative will test the most promising, safe and efficient quiet-vessel designs, retrofits and operational practices to achieve noise reductions.
- The Terrestrial Studies Initiative will support Indigenous-led studies to better understand the project’s potential impacts, including on traditional land use. It could also inform the monitoring of cumulative effects from the construction, operation and maintenance of the project.
National Energy Board (NEB) Amended Conditions
In its August 2018 ruling, the Federal Court of Appeal found that Canada was unwilling to meaningfully discuss and consider changes to the Canada Energy Regulator’s (CER) conditions to the project.
As a result of the re-initiated Phase III consultations, and the meaningful, two-way dialogue that included listening to concerns, responding to them, and finding solutions and accommodations, a series of amendments to the CER’s conditions were identified. These address impacts to asserted and established Aboriginal and Treaty Rights.
The government has amended six conditions. They include changes to:
- how Trans Mountain Corporation (TMC) tracks its commitments to ensure accountability for all commitments made as well as future commitments (Condition 6);
- increase the involvement of Indigenous communities in the development of marine response plans (Condition 91);
- increase the involvement of Indigenous communities in monitoring activities during construction (Condition 98);
- ensure more meaningful consultation with Indigenous communities and increased transparency to inform the Emergency Management Plan (Condition 124);
- seek a process to verify and ensure involvement in the development of post-construction environmental reports (Condition 151); and
- manage and mitigate the potential impacts of the project on sacred and cultural sites (Condition 100).
The amendments have been made to increase Indigenous confidence in the actions and commitments from TMC and the CER, as well as to increase the involvement of Indigenous communities in TMC’s plans.
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