What informed the Government decision
The Government of Canada has been steadfast in its commitment to doing resource development the right way. That commitment includes the hard work necessary to move forward on the Trans Mountain Expansion (TMX) project reconsideration by following the guidance from the Federal Court of Appeal (FCA). The August 2018 FCA ruling quashed the government’s approval of the project on two grounds: the National Energy Board (now the Canada Energy Regulator or CER) had erred in its decision to exclude consideration of the environmental impact of project-related marine shipping; and the government had failed to properly execute its legal duty to consult with Indigenous peoples.
In making the decision to approve the project, the government took into consideration a wide variety of information, including the NEB’s (now CER) Reconsideration Report, the Crown Consultation and Accommodation Report (CCAR), the Honourable Frank Iacobucci’s independent advice, evidence-based science and Indigenous knowledge.
National Energy Board’s (now CER) Reconsideration Report
On February 22, 2019, the NEB (now CER) submitted its Reconsideration Report on TMX, with an overall finding that the project is in the Canadian public interest and should be approved subject to 156 conditions and 16 recommendations. The conditions and recommendations are made in accordance with the requirements of the NEB Act, the Canadian Environmental Assessment Act 2012 and the Species at Risk Act (SARA).
The 156 conditions are mandatory measures that the proponent must comply with throughout the life cycle of the pipeline in order for the project to move ahead. They cover a wide range of matters, including emergency preparedness and response, protection of the environment, consultation with affected Indigenous communities, socio-economic issues, pipeline safety and integrity, commercial support for the project prior to construction and financial responsibility on the part of Trans Mountain Corporation (TMC).
The 16 recommendations were provided by the NEB (now CER) to the Governor-in-Council (GiC) for consideration in deciding whether to approve the project. These include measures to mitigate, avoid or lessen the effects of project-related marine shipping that are beyond the scope of the CER’s regulatory authority and TMC’s control, but within the authority of the government. The recommendations include: measures to address project-related marine shipping; such as cumulative effects management for the Salish Sea; measures to offset increased underwater noise and increased strike risk posed to marine mammals and fish species listed in SARA; marine oil spill response; marine shipping and small vessel safety; reduction of greenhouse gas emissions from marine vessels; and the Indigenous Advisory Monitoring Committee.
Taken together, the NEB (now CER) conditions, as amended by the GiC, and recommendations, as well as proponent commitments, government accommodation measures and ongoing federal action, will mitigate and offset the impacts of the project and the associated marine shipping.
The Crown’s assessment of the re-initiated Phase III consultations is documented in the CCAR. It provides an overview of engagements with potentially impacted Indigenous groups, including concerns raised and the measures proposed to address them. It reflects the most exhaustive, comprehensive consultation ever conducted for a major project.
The CCAR also demonstrates how the Crown approached the consultations differently this time. In following the guidance set out by the FCA, the government made a series of changes to ensure meaningful, two-way dialogue with groups, enabling officials to better respond to the specific concerns of communities as related to potential accommodations and impacts on Indigenous Rights. This included, among other measures, the appointment of the former Supreme Court Justice, the Honourable Frank Iacobucci, to provide oversight and direction to Canada on the revised consultation and accommodation process, as well as expanding the mandate of consultation teams to discuss and agree to accommodations, where appropriate. The issues raised by Indigenous communities were communicated regularly to decision makers, including ministers, to ensure consultation teams were empowered to discuss and propose robust accommodations.
The CCAR concluded that the government had addressed the issues identified by the FCA decision; that the Crown had provided meaningful responses; and, where appropriate, provided accommodations to address potential impacts on established and asserted Aboriginal and Treaty Rights. Eight new accommodation measures were developed in response to concerns expressed during consultations with Indigenous groups. These measures are in addition to the CER conditions, as amended by the GiC, and areas of existing government process to address the rights-based concerns expressed by specific communities, such as enhanced marine response capacity or fish habitat restoration. The accommodation measures deal with project-related impacts, cumulative effects along the project corridor, and economic opportunities for Indigenous communities. The government has also amended certain CER conditions to accommodate concerns expressed by Indigenous groups.
The accommodation measures and amended conditions demonstrate the government’s commitment to rectify the flaws identified in the FCA’s decision on consultations and that the government did things differently to ensure meaningful engagement.
Evidence-based Science and Indigenous Knowledge
Federal scientists provided the NEB (now CER) with scientific and technical advice on a wide range of issues, including: terrain mapping; pipeline safety; emergency preparedness and response; marine safety and security; the project’s effects on wildlife, air quality, environmental emergencies, marine fish/mammals and fish habitat; and anchorage and channel design near the Westridge Marine Terminal.
Additionally, the government’s decision was informed by evidence-based science submitted to the NEB (now CER) prior to the August 2018 FCA ruling. The NEB’s (now CER) environmental assessment and regulatory review also reflected extensive technical, scientific and expert evidence, including Traditional Knowledge provided by 83 Indigenous groups. The proponent’s 15,000-page application was also further tested through written questions from the NEB (now CER) and intervenors, evidence and comments filed by hearing participants, oral testimony by Indigenous groups and final arguments. Environment and Climate Change Canada also conducted a review of upstream and direct greenhouse gas emissions from the project.
All of this reflects the government’s continued commitment to evidence-based decision-making on natural resource projects.
Actions by the Proponent
TMC continues to have ongoing discussions with communities, Indigenous groups, landowners and stakeholders. To better address Indigenous concerns related to project-specific impacts, TMC has worked with communities to establish mutual benefit agreements (MBAs), which can include contracting or procurement commitments, financial compensation, employment and training opportunities and emergency response or environmental measures funded by the company. To date, TMC has signed 48 MBAs totaling over $400 million.
The project represents direct economic and social benefits for Indigenous communities. TMC remains committed to building and maintaining meaningful, long-term relationships with all Indigenous communities that have an interest in the project. TMC will continue to work with groups. and the number and form of MBAs may evolve over time.
To view the full list of TMC commitments, please visit the Commitments Tracking Table.
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