Canada Gazette, Part I, Volume 153, Number 25: ORDERS IN COUNCIL

June 22, 2019

DEPARTMENT OF NATURAL RESOURCES

NATIONAL ENERGY BOARD ACT

Certificate of Public Convenience and Necessity OC-65 to Trans Mountain Pipeline ULC in respect of the Trans Mountain Expansion Project; and Amending Orders AO-004-OC-49, AO-005-OC-2, AO-002-OC-49 and AO-003OC-2

P.C. 2019-820
June 18, 2019

Whereas, on December 16, 2013, Trans Mountain Pipeline ULC (“Trans Mountain”) applied to the National Energy Board (“Board”) pursuant to Part III of the National Energy Board Act for a Certificate of Public Convenience and Necessity in respect of the proposed construction and operation of the Trans Mountain Expansion Project (“Project”);

Whereas, on May 19, 2016, having reviewed Trans Mountain’s application and conducted an environmental assessment of the Project, the Board submitted its report on the Project entitled Trans Mountain Expansion Project OH-001-2014 (“Board’s Report”) to the Minister of Natural Resources, pursuant to section 29 of the Canadian Environmental Assessment Act, 2012 and section 52 of the National Energy Board Act;

Whereas, the initial consultation process on the Project with potentially impacted Indigenous groups was carried out in four phases: Phase I - Early Engagement (December 2013 - April 2014), Phase II – Board Hearings (April 2014 - February 2016), Phase III – Government Decision (February 2016 - November 2016), Phase IV – Regulatory Authorizations;

Whereas, on November 29, 2016, the Governor in Council issued Order in Council P.C. 2016-1069, which accepted the Board’s recommendation that the Project will be, if the terms and conditions set out in Appendix 3 of the Board’s Report are complied with, required by the present and future public convenience and necessity under the National Energy Board Act and will not likely cause significant adverse environmental effects under the Canadian Environmental Assessment Act, 2012;

Whereas, on December 1, 2016, at the direction of the Governor in Council, the Board issued Certificate of Public Convenience and Necessity OC-064 to Trans Mountain, in respect of the Project, making it subject to the terms and conditions set out in Appendix 3 of the Board’s Report, and issued Amending Orders AO-002-OC-49 and Amending Order AO-003-OC-2;

Whereas, on February 2, 2018, the Governor in Council issued Order in Council P.C. 2018-58 approving the Board’s issuance of Amending Orders AO-003-OC-49 and AO-004-OC-2;

Whereas, on August 30, 2018, the Federal Court of Appeal (“the Court”) quashed Order in Council P.C. 2016-1069 in its decision Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153 (“Tsleil-Waututh Nation Decision”) and remitted the issue of Project approval to the Governor in Council for prompt redetermination;

Whereas, in the Tsleil-Waututh Nation Decision, the Court concluded, among other things, that the Board ought to reconsider on a principled basis whether Project-related marine shipping is incidental to the Project, the application of section 79 of the Species at Risk Act to Project-related shipping, the Board’s environmental assessment of the Project in the light of the Project’s definition, the Board’s recommendation under subsection 29(1) of the Canadian Environmental Assessment Act, 2012 and any other matter the Governor in Council should consider appropriate;

Whereas, on September 20, 2018, as per the Court’s guidance, the Governor in Council issued Order in Council P.C. 2018-1177 and referred back to the Board for reconsideration the recommendations and all terms or conditions set out in the Board’s Report that are relevant to addressing the issues specified by the Court in paragraph 770 of the Tsleil-Waututh Nation Decision, directed that the Board conduct the reconsideration taking into account the environmental effects of Project-related marine shipping in view of the requirements of the Canadian Environmental Assessment Act, 2012, and the adverse effects of Project-related marine shipping on species at risk, including the Northeast Pacific Southern Resident Killer Whale population (“Southern Resident Killer Whale”), and their critical habitat, in view of any requirements of section 79 of the Species at Risk Act that may apply to the Project;

Whereas, on October 12, 2018, the Board decided, on a principled basis, to include Project-related marine shipping between the Westridge Marine Terminal and the 12-nautical-mile territorial sea limit in the designated Project to be assessed as defined under the Canadian Environmental Assessment Act, 2012;

Whereas, on December 6, 2018, in Order in Council P.C. 2018-1520, pursuant to section 10 of the National Energy Board Act, Canada appointed John A. Clarkson of Sooke, British Columbia, as a Marine technical advisor to the Board to assist the Board in an advisory capacity;

Whereas, on February 22, 2019, having conducted its reconsideration in accordance with Order in Council P.C. 2018-1177, the Board submitted its reconsideration report on the Project entitled National Energy Board Reconsideration Report - Trans Mountain Pipeline ULC - MH-052-2018 (“the Board’s Reconsideration Report”) and submitted it to the Minister of Natural Resources, pursuant to section 30 of the Canadian Environmental Assessment Act, 2012 and section 53 of the National Energy Board Act;

Whereas, pursuant to the Canadian Environmental Assessment Act, 2012, the Board was of the view that the Project is likely to cause significant adverse environmental effects, specifically that Project-related marine shipping is likely to cause significant adverse environmental effects on the Southern Resident Killer Whale, and on Indigenous cultural use associated with the Southern Resident Killer Whale, despite the fact that effects from Project-related marine shipping will be a small fraction of the total cumulative effects, and that the level of marine traffic is expected to increase regardless of whether the Project is approved, that greenhouse gas (or GHG) emissions from Project-related marine vessels would result in measureable increases and, taking a precautionary approach, are likely to be significant and that while a credible worst-case spill from the Project or a Project-related vessel is not likely, if it were to occur, the environmental effects would be significant;

Whereas, while these effects weighed heavily in the Board’s reconsideration of Project-related marine shipping, it concluded that, in light of the considerable benefits of the Project and measures to mitigate the effects, and the Recommendations to the Governor in Council proposed by the Board, these effects can be justified in the circumstances;

Whereas, the Board concluded that the Project is and will be required by the present and future public convenience and necessity, and is in the Canadian public interest and recommended that a Certificate of Public Convenience and Necessity be issued for the Project under section 52 of the National Energy Board Act, subject to the 156 conditions outlined in the Board’s Reconsideration Report;

Whereas, the Board’s MH-052-2018 hearing also forms part of the overall consultation process with Indigenous peoples with respect to their constitutionally protected rights and the Board has considered those aspects of consultation which are relevant to the Reconsideration and for which evidence was filed on the record;

Whereas, pursuant to the National Energy Board Act, the Board confirmed the recommendation, and replaced certain conditions that it provided to the Governor in Council in its OH-001-2014 Report, and recommended that the Governor in Council approve the Project by directing the issuance of a Certificate of Public Convenience and Necessity to Trans Mountain, subject to 156 conditions;

Whereas, in its Reconsideration Report, the Board made 16 recommendations (the “Recommendations”) to the Governor in Council associated with Project-related marine shipping which it determined were outside of the control of Trans Mountain and the Board’s authority to regulate but for which it determined the Governor in Council was not so limited, including cumulative effects management for the Salish Sea, measures to offset increased underwater noise and increased strike risk posed to the Species at Risk Act-listed marine mammal and fish species, including the Southern Resident Killer Whale, marine oil spill response, marine shipping and small vessel safety, reduction of greenhouse gas emissions from marine vessels, and engagement on the marine safety system with the Indigenous Advisory and Monitoring Committee;

Whereas, the Board has identified the adverse effects of the Project and its related marine shipping on Species at Risk Act-listed wildlife species and their critical habitat, consistent with any applicable recovery strategy and action plans, including the Southern Resident Killer Whale and its critical habitat and has imposed conditions and has recommended to the Governor in Council measures which are among the Recommendations to avoid or lessen those effects and to monitor them;

Whereas, in the Tsleil-Waututh Nation Decision the Court concluded among other things that the Government failed to engage in meaningful dialogue and grapple with concerns expressed to it in good faith by Indigenous groups, that the Government did not fulfill its duty to consult with and, if appropriate accommodate Indigenous peoples and as a result Canada must re-do Phase III consultations;

Whereas, on September 28, 2018, Canada wrote to Indigenous groups potentially impacted by the Project, encouraging them to participate in the Board process and clarified that it intends to rely on the Board reconsideration process, to the extent possible, to fulfill the legal duty to consult related to Project-related marine shipping;

Whereas, on October 5, 2018 the Government re-initiated Phase III consultations, in keeping with the Court’s decision and direction, and guided by the objectives of meeting its consultation obligations under section 35 of the Constitution Act, 1982, and its commitments to advance reconciliation with Indigenous peoples, engaged in substantive, meaningful two-way dialogue in order to fully understand the concerns raised and the nature and seriousness of potential impacts on rights and, where appropriate, to work collaboratively with Indigenous groups to identify and provide accommodations, and respond to concerns raised in these and the previous Phase III consultations in a flexible manner that takes into account the potential impacts and needs of each Indigenous group;

Whereas, responding to concerns outlined by the Court, Canada appointed the Honourable Frank Iacobucci, former Supreme Court of Canada Justice, as a Federal Representative, to provide oversight and direction to the Government on how to conduct meaningful consultations and accommodations and ensure that the consultation process proceeded as the Court prescribed;

Whereas, responding to concerns outlined by the Court, Canada established a system to communicate and seek direction from senior management and decision makers, including Ministers, on the issues being raised at the consultations, provided regular consultations updates by the Minister of Natural Resources to other Ministers of the Crown, held periodical Ministerial meetings with consultations leads to discuss the consultation process and specific accommodations measures and held 46 ministerial meetings with over 65 Indigenous groups potentially impacted by the Project;

Whereas, during the re-initiated Phase III consultations (2018-2019) the Government presented a number of specific, targeted accommodations measures designed to respond to concerns raised by Indigenous groups, including but not limited to the Co-Developing Community Response, the Salish Sea Initiative, the Terrestrial Cumulative Effects Initiative and the Quiet Vessel Initiative;

Whereas, Canada is relying on the Board’s OH-001-2014 and MH-052-2018 hearings to fulfill the duty to consult, to the extent possible;

Whereas, in the Tsleil-Waututh Nation Decision the Court noted that when considering whether Canada has fulfilled its duty to consult, the Governor in Council necessarily has the power to impose conditions on any certificate of public convenience and necessity it directs the Board to issue, and that the Governor in Council has the power pursuant to section 35 of the Constitution Act, 1982 to add or amend conditions in order to address impacts to section 35 Aboriginal or treaty rights;

Whereas, in response to submissions from the Indigenous Advisory and Monitoring Committee and proposals from Indigenous groups during re-initiated consultations and seeking to accommodate outstanding Indigenous concerns raised during consultations the Governor in Council has amended certain Project certificate conditions as proposed in appendix 3 of the Board’s Reconsideration Report Trans Mountain Pipeline ULC - MH-052-2018, as indicated in the annexed form;

Whereas Canada is not prepared to waive any immunities to which it is entitled as owner of the pipeline;

Whereas Condition 2 to the Project certificate requires Trans Mountain to work with municipalities and, as a good neighbour, seek to obtain appropriate provincial and municipal permits and authorizations;

Whereas, on April 17, 2019, the Governor in Council issued Order in Council P.C. 2019-0378 pursuant to subsection 54(3) of the National Energy Board Act, extending the time limit for making the order referred to in subsection 54(1) of that Act to June 18, 2019, in respect of the Project, in order to ensure adequate time to conclude consultations with Indigenous peoples prior to a Governor in Council decision on the Project;

Whereas the Governor in Council, having considered Indigenous concerns and interests of 129 groups as set out in the Crown Consultation and Accommodation Report for the Reconsideration of the Trans Mountain Expansion Project dated June 13, 2019, and having considered Justice Iacobucci’s oversight, direction and advice, is satisfied that: the consultation process undertaken is consistent with the honour of the Crown and meets the guidance set forth in the Tsleil-Waututh Nation Decision for meaningful two-way dialogue focused on rights and the potential impacts on rights, and that the concerns, and potential impacts to interests including established and asserted Aboriginal and treaty rights identified in the consultation process have been appropriately accommodated;

Whereas the Governor in Council accepts the Board’s views that the Project is required by the present and future public convenience and necessity and is in the Canadian public interest, and considering the Board’s views that the significant adverse environmental effects it is likely to cause can be justified in the circumstances under the Canadian Environmental Assessment Act, 2012, the Board recommends that the Governor in Council approve the Project by directing the issuance of a Certificate of Public Convenience and Necessity to Trans Mountain, subject to the terms and conditions set out in Appendix 3 of the Board’s Reconsideration Report;

Whereas, the Governor in Council, having reviewed the Recommendations of the Board to the Governor in Council contained in the Reconsideration Report, undertakes to implement all the Recommendations;

Whereas, the Governor in Council, having considered the Board’s Reconsideration Report, the terms and conditions for Trans Mountain and the Recommendations to the Governor in Council, measures being taken by Canada with respect to Species at Risk Act-listed species including the Southern Resident Killer Whale and including measures related to the reduction of underwater noise and vessel strikes such as the Oceans Protection Plan, the Whales Initiative, and the measures set out in Order in Council P.C. 2018-1352 dated November 1, 2018 and the measures announced in May 2019, the concerns of Indigenous groups including potential impacts to Indigenous interests, including established and asserted Aboriginal and treaty rights, in relation to the Southern Resident Killer Whale and measures being taken by Canada to address those concerns and potential impacts, and Canada’s commitment to assess, monitor and report on the effectiveness of these measures and adaptively manage them, is satisfied that measures have been and are being taken to mitigate the significant adverse environmental effects on the Southern Resident Killer Whale and Indigenous cultural use of the Southern Resident Killer Whale and to avoid or lessen the adverse effects of Project-related marine shipping on listed species at risk and their critical habitat, including the Southern Resident Killer Whale and their critical habitat, and that those measures will be assessed, monitored and adaptively managed;

Whereas the Governor in Council, having considered the estimated upstream greenhouse gas emissions associated with the Project and identified in Environment and Climate Change Canada’s report entitled Trans Mountain Pipeline ULC — Trans Mountain Expansion Project: Review of Related Upstream Greenhouse Gas Emissions Estimates, and measures under the Pan-Canadian Framework on Clean Growth and Climate Change, is satisfied that the Project is consistent with Canada’s commitments in relation to the Paris Agreement on Climate Change;

And whereas the Governor in Council considers that the Project would increase access to diverse markets for Canadian oil and support economic development while ensuring safety and environmental protection;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Natural Resources,

ANNEX A

Amendments to National Energy Board Conditions

Note: Amendments to National Energy Board conditions are italicized.

Condition 6: Commitments tracking table

Without limiting Conditions 2, 3 and 4, Trans Mountain must implement the commitments contained within its commitments tracking table. The proponent shall periodically update the commitments tracking table as per b), by adding to the table all commitments made by the Proponent in respect of the Project subsequent to the close of the MH-052-2018 proceeding, and must:

Condition 91: Plan for marine spill prevention and response commitments

Trans Mountain must file with the NEB, within 6 months from the issuance date of the Certificate, a plan describing how it will ensure that it will meet the requirements of Condition 133 regarding marine spill prevention and response. The plan must be prepared in consultation with Transport Canada, the Canadian Coast Guard, the Pacific Pilotage Authority, Vancouver Fraser Port Authority, British Columbia Coast Pilots, Western Canada Marine Response Corporation, Fisheries and Oceans Canada, and the Province of British Columbia, and potentially affected Indigenous groups, and must identify any issues or concerns raised and how Trans Mountain has addressed or responded to them.

Trans Mountain must provide a summary of its consultations for this purpose, including a description and rationale for how Trans Mountain has incorporated the results of its consultation into the strategy.

Trans Mountain must provide the plan to the abovementioned parties at the same time as it is filed with the NEB.

Condition 98: Plan for Indigenous group participation in construction monitoring

Trans Mountain must file with the NEB, at least 2 months prior to commencing construction, a plan describing participation by Indigenous groups in monitoring activities during construction for the protection of traditional land and resource use for the pipelines, terminals and pump stations, and traditional marine resource use at the Westridge Marine Terminal. The plan must include:

Trans Mountain must provide a copy of the report to each all potentially affected groups identified in b) above at the same time that it is filed with the NEB.

Condition 100: Heritage Resources and Sacred and Cultural Sites

Trans Mountain must file with the NEB at least thirty days prior to commencing construction of individual Project components as described in Condition 10(a):

Condition 124: Implementing improvements to Trans Mountain’s Emergency Management Program

Trans Mountain must file with the NEB, at least 6 months prior to commencing operations, a detailed summary of its review of its Emergency Response Plans (as noted in Conditions 125 and 126) and equipment (including its availability), as referenced in Volume 7, Section 4.8.2 of its Project application (Filing A3S4V5). This filing must include a description of changes made to Trans Mountain’s Emergency Management Program, as required under the National Energy Board Onshore Pipeline Regulations, including changes to:

The summary must demonstrate Trans Mountain’s ability to prepare for, respond to, recover from, and mitigate the potential effects of emergencies of any type and in any geographic region or season and must include the following:

Condition 151: Post-construction environmental monitoring reports

Trans Mountain must file with the NEB, on or before 31 January following the first, third, and fifth complete growing seasons after completing final clean-up, a post-construction environmental monitoring report for the Project that must include:

In the post-construction environmental monitoring report filed after the fifth full growing season after completing clean-up, Trans Mountain must include:

All filed post-construction environmental monitoring reports must address issues related, but not limited, to: soils; weeds; watercourse crossings; riparian vegetation; wetlands; rare plants, lichens and ecological communities; municipal tree replacement; wildlife and wildlife habitat; fish and fish habitat; marine fish and fish habitat; marine mammals; marine birds; and species at risk.

ANNEX B

ORDER AO-004-OC-49

IN THE MATTER OF the National Energy Board Act (NEB Act) and the regulations made thereunder; and

IN THE MATTER OF the Canadian Environmental Assessment Act, 2012, (CEA Act) and the regulations made thereunder; and

IN THE MATTER OF an application pursuant to sections 52, 58 and 21 of the NEB Act and section 44 of the National Energy Board Onshore Pipeline Regulations (OPR), dated 16 December 2013, by Trans Mountain Pipeline ULC (Trans Mountain) to construct and operate the Trans Mountain Expansion Project (Project) between Edmonton, Alberta, and Burnaby, British Columbia, filed with the National Energy Board (NEB or Board) under File OF-Fac-T260-2013-03 02; and

IN THE MATTER OF Order in Council P.C. 2018-1177, referring aspects of the Board’s recommendation back for reconsideration, filed with the Board under File OF-Fac-T260-2013-03 59.

BEFORE the Board on XX Month 2019.

WHEREAS the issuance of Certificate of Public Convenience and Necessity (CPCN) OC-49 to Terasen Pipelines [Trans Mountain] Inc. authorizing the construction and operation of a pipeline loop and associated facilities extending from Hinton, Alberta to Hargreaves, a location near Rearguard, British Columbia (TMX-Anchor Loop) was approved by Governor in Council, through Order in Council No. P.C. 2006-1410, on 23 November 2006;

AND WHEREAS the Governor in Council, by Order in Council No. P.C. 2007-1181, dated 31 July 2007, approved Order AO-001-OC-49 which changed the name of the holder of CPCN OC-49 to Trans Mountain;

AND WHEREAS the application included a request for authorization to:

AND WHEREAS the Board held a public hearing in respect of the Project pursuant to Hearing Order OH-001-2014;

AND WHEREAS the Board had regard to all considerations that were directly related to the Project and were relevant, including environmental matters, pursuant to Part III of the NEB Act, and conducted an environmental assessment of the Project pursuant to the CEA Act;

AND WHEREAS the Board provided the Governor in Council with its recommendations and decisions on the application for the Project, and reasons, which were set out in the OH-001-2014 National Energy Board Report for the Project dated 19 May 2016 (the 2016 Report);

AND WHEREAS the Governor in Council, by Order in Council No. P.C. 2016-1069 dated 29 November 2016, approved, among other things, the issuance of Amending Order AO-002-OC-49, which authorized the Anchor Loop Work;

AND WHEREAS the Governor in Council, by Order in Council No. P.C. 2018-0058, dated 2 February 2018, approved Order AO-003-OC-49 which further amended OC-49 to remove the Wolf Pump Station from Schedule A, reflecting that the Wolf Pump Station will remain in operational service (the Amendment to the Anchor Loop Work);

AND WHEREAS on 30 August 2018, the Federal Court of Appeal set aside Order in Council No. P.C. 2016-1069 and remitted the application to the Governor in Council for redetermination;

AND WHEREAS by Order in Council P.C. 2018-1177 dated 20 September 2018, the Governor in Council referred the recommendations and all terms or conditions relevant to Project-related marine shipping set out in the 2016 Report back to the Board for reconsideration (Reconsideration);

AND WHEREAS the Board held a public hearing in respect of the Reconsideration pursuant to Hearing Order MH-052-2018;

AND WHEREAS, as directed by Order in Council P.C. 2018-1177, the Board conducted an environmental assessment of Project-related marine shipping pursuant to the CEA Act and considered the evidence relating to potential impacts of Project-related marine shipping on Indigenous peoples;

AND WHEREAS the Board’s recommendations and decisions on the application for the Project and the Reconsideration, and reasons, are set out in the MH-052-2018 National Energy Board Reconsideration Report (Reconsideration Report);

AND WHEREAS the Board submitted its Reconsideration Report to the Minister recommending changes to the conditions for the Project; that a Certificate be issued and two existing Certificates be amended for the Project pursuant to subsections 53(5) and 21(2) of the NEB Act;

AND WHEREAS the Governor in Council, by Order in Council No. P.C. 2019-XXXX dated the XX Month 2019, has approved AO-002-OC-49 issued on December 1, 2016 and approved the issuance of this Amending Order to CPCN OC-49;

IT IS ORDERED that pursuant to subsection 21(2) of the NEB Act, CPCN OC-49 is hereby varied to approve the Anchor Loop Work and the Amendment to the Anchor Loop Work, subject to the conditions marked as applicable in the “OC49” column set out in set out in Appendix 3 of the MH-052-2018 National Energy Board Reconsideration Report, and with the applicable conditions as amended by the Governor in Council, by Order in Council No. P.C. 2019.

Issued at Calgary, Alberta on XX Month 2019.

NATIONAL ENERGY BOARD

Sheri Young
Secretary of the Board

ANNEX C

ORDER AO-005-OC-2

IN THE MATTER OF the National Energy Board Act (NEB Act) and the regulations made thereunder; and

IN THE MATTER OF the Canadian Environmental Assessment Act, 2012, (CEA Act) and the regulations made thereunder; and

IN THE MATTER OF an application pursuant to sections 52, 58 and 21 of the NEB Act and section 44 of the National Energy Board Onshore Pipeline Regulations (OPR), dated 16 December 2013, by Trans Mountain Pipeline ULC (Trans Mountain) to construct and operate the Trans Mountain Expansion Project (Project) between Edmonton, Alberta, and Burnaby, British Columbia, filed with the National Energy Board (NEB or Board) under File OF-Fac-T260-2013-03 02; and

IN THE MATTER OF Order in Council P.C. 2018-1177, referring aspects of the Board’s recommendation back for reconsideration, filed with the Board under File OF-Fac-T260-2013-03 59.

BEFORE the Board on XX Month 2019.

WHEREAS the Board issued Certificate of Public Convenience and Necessity (CPCN) OC-2 to Trans Mountain Oil Pipeline Company authorizing the construction and operation of an oil pipeline from Edmonton, Alberta to Burnaby, British Columbia, and CPCN OC-2 came into force on 19 August 1960;

AND WHEREAS the Governor in Council, by Order in Council No. P.C. 1964-1725 dated 5 November 1964, approved Order AO-001-OC-2, reflecting minor wording changes to CPCN OC-2 related to route maps, design drawings and specifications of pipe and facilities;

AND WHEREAS the Governor in Council, by Order in Council No. P.C. 2007-1181 dated 31 July 2007, approved Order AO-002-OC-2, which changed the name of the holder of CPCN OC-2 to Trans Mountain;

AND WHEREAS the application included a request for authorization to:

AND WHEREAS the Board held a public hearing in respect of the Project pursuant to Hearing Order OH-001-2014;

AND WHEREAS the Board had regard to all considerations that were directly related to the Project and were relevant, including environmental matters, pursuant to Part III of the NEB Act, and conducted an environmental assessment of the Project pursuant to the CEA Act;

AND WHEREAS the Board provided the Governor in Council with its recommendations and decisions on the application for the Project, and reasons, which were set out in the OH-001-2014 National Energy Board Report for the Project dated 19 May 2016 (the 2016 Report);

AND WHEREAS the Governor in Council, by Order in Council No. P.C. 2016-1069 dated 29 November 2016, approved, among other things, the issuance of Amending Order AO-003-OC-2, which authorized the Line 1 Work;

AND WHEREAS the Governor in Council, by Order in Council No. P.C. 2018-0058, dated 2 February 2018, approved Order AO-004-OC-2 which further amended OC-2 to remove the Niton Pump Station and Tank No. 9 of the Edmonton Terminal West Tank Area from Schedule A, reflecting that the Niton Pump Station will remain in a deactivated state and that Tank No. 9 of the Edmonton Terminal West Tank Area will remain in operational service (collectively, the Amendments to the Line 1 Work);

AND WHEREAS on 30 August 2018, the Federal Court of Appeal set aside Order in Council No. P.C. 2016-1069 and remitted the application to the Governor in Council for redetermination;

AND WHEREAS by Order in Council P.C. 2018-1177 dated 20 September 2018, the Governor in Council referred the recommendations and all terms or conditions relevant to Project-related marine shipping set out in the 2016 Report back to the Board for reconsideration (Reconsideration);

AND WHEREAS the Board held a public hearing in respect of the Reconsideration pursuant to Hearing Order MH-052-2018;

AND WHEREAS, as directed by Order in Council P.C. 2018-1177, the Board conducted an environmental assessment of Project-related marine shipping pursuant to the CEA Act and considered the evidence relating to potential impacts of Project-related marine shipping on Indigenous peoples;

AND WHEREAS the Board’s recommendations and decisions on the application for the Project and the Reconsideration, and reasons, are set out in the MH-052-2018 National Energy Board Reconsideration Report (Reconsideration Report);

AND WHEREAS the Board submitted its Reconsideration Report to the Minister recommending changes to the conditions for the Project; that a Certificate be issued and two existing Certificates be amended for the Project pursuant to subsections 53(5) and 21(2) of the NEB Act;

AND WHEREAS the Governor in Council, by Order in Council No. P.C. 2019-XXXX dated the XX Month 2019, has approved AO-003-OC-2 issued on December 1, 2016 and approved the issuance of this Amending Order to CPCN OC-2;

IT IS ORDERED that pursuant to subsection 21(2) of the NEB Act, CPCN OC-2 is hereby varied to approve the Line 1 Work and the Amendments to the Line 1 Work, subject to the conditions marked as applicable in the “OC2” column set out in Appendix 3 of the MH-052-2018 National Energy Board Reconsideration Report, and with the applicable conditions as amended by the Governor in Council, by Order in Council No. P.C. 2019-XXXX.

Issued at Calgary, Alberta on XX Month 2019.

NATIONAL ENERGY BOARD

Sheri Young
Secretary of the Board

EXPLANATORY NOTE

Proposal and objectives

On December 16, 2013, Trans Mountain Pipeline ULC (Trans Mountain), a wholly owned subsidiary of Kinder Morgan Canada, applied to the National Energy Board (NEB or the Board) under sections 52 and 58 of the National Energy Board Act (NEB Act), requesting that Certificate of Public Convenience and Necessity (Certificate) OC-001-064 be issued by the NEB for the construction and operation of the Trans Mountain Expansion Project (the Project).

The Project consists of twinning its existing 1 147 kilo- metre (km) Trans Mountain pipeline system between Edmonton, Alberta (Alta.), and Burnaby, British Columbia (B.C.), and expanding its Westridge Marine Terminal (WMT) in Burrard Inlet. The Project would include approximately 987 km of new, buried pipeline and would increase the capacity of the pipeline system from 47 690 cubic metres per day (m3/d) or 300 000 barrels per day (bbl/d) to 141 500 m3/d (890 000 bbl/d).

The Project was initially approved by the Governor in Council (GIC) on November 29, 2016, with the issuance of Order in Council P.C. 2016-1069, which accepted the Board’s recommendation that the Project would be required by the present and future public convenience and necessity under the NEB Act and would not likely cause significant adverse environmental effects under the Canadian Environmental Assessment Act, 2012 (CEAA, 2012), if the terms and conditions set out in the Board’s report of May 19, 2016, entitled Trans Mountain Expansion Project OH-001-2014 (“Initial Report”), were complied with.

On August 30, 2018, the Federal Court of Appeal (FCA or the Court) quashed Order in Council P.C. 2016-1069 in its decision in Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153 (“Tsleil-Waututh Nation”) and remitted the matter to the GIC for prompt redetermination. The Court also ruled that the Government must redo Phase III Crown consultations.

On September 20, 2018, pursuant to section 53 of the NEB Act and section 30 of the CEAA, 2012, the GIC referred the Board recommendations as set out in its Initial Report, in respect of the proposed construction and operation of the Project, back to the Board for reconsideration.

On February 22, 2019, following its reconsideration hearing into Project-related marine shipping, the Board issued its report entitled National Energy Board Reconsideration Report - Trans Mountain Pipeline ULC. - MH-052-2018 (“Reconsideration Report”), which determined that the Project is in the Canadian public interest and recommended the issuance of a Certificate of Public Convenience and Necessity, subject to 156 conditions imposed on the proponent, as set out in Appendix 3 of the Reconsideration Report. The Board also issued 16 additional recommendations to the Government of Canada.

Canada reinitiated Phase III consultations with Indigenous groups in October 2018. To respond to what was heard from Indigenous groups, the Government was prepared to implement accommodation measures and introduce amendments to the NEB’s 156 proposed conditions (Amended Conditions). The Crown Consultations and Accommodation Report was provided to Ministers prior to the GIC decision and was made public.

In addition to approval of the issuance of a Certificate of Public Convenience and Necessity, the NEB is seeking approval for the issuance of two Amending Orders to Trans Mountain Pipeline ULC pursuant to subsection 21(2) of the NEB Act to two existing pipeline certificates (from 1960 and 2006 respectively) held by Trans Mountain Pipeline ULC, and re-approval of the Amending Orders that were issued by the NEB in 2016, in order to approve work that is required on the existing Trans Mountain pipeline as part of the expansion Project, specifically

Background

Trans Mountain Expansion Project background

Trans Mountain submitted its application to the Board for a Project certificate on December 16, 2013. The purpose of the Project is to increase the capacity of the pipeline system from 300 000 barrels per day (bbl/d) to 890 000 bbl/d, by twinning the existing Trans Mountain pipeline that currently transports oil from Edmonton to Burnaby. The Project would provide large-scale access to world markets, including growing markets in the Pacific basin and Asia and create shipping options for Canadian oil producers to multiple markets. The proponent submitted that the largest contribution of the Project to tax revenues and investment is expected to come from higher prices that oil producers will receive based on access to overseas markets.

The pipeline would follow an existing right-of-way for 89% of its 1 147 km length. The Project would also expand the Westridge Marine Terminal (WMT) by adding two berths to allow the terminal to increase the number of tankers it receives from about five per month to about one per day. Project-related increase in marine traffic within Burrard Inlet would represent approximately 16.4% of total marine traffic volume, compared to the current 3.0%. Trans Mountain also said that within the Strait of Juan de Fuca, Project-related tanker traffic would increase to about 6.6% of total marine traffic volume as compared to the current 1.1%.

NEB initial review process (2014–2016)

In April 2014, the Board issued Hearing Order OH-001-2014, setting out the process for the public review of the Project. The Board received and considered a total of 2 118 applications to participate in the OH-001-2014 hearing for the Project. The Board granted standing to participate to 1 650 applicants. Out of these 1 650 hearing participants, 400 participated as intervenors and the remaining as commenters. Hearing participants were from various groups, including federal and provincial governments, business, Indigenous peoples, landowners, individuals and non-governmental organizations. A total of $3,085,370 in participant funding was allocated to 72 intervenors.

On May 19, 2016, the Board found that the Project was in the public interest and recommended that a Certificate be issued under section 52 of the NEB Act for the construction and operation of the Project. The Certificate was subject to 157 terms and conditions that the Board considered necessary or desirable in the public interest. Pursuant to section 29 of the CEAA, 2012, the Report also stated that the Board is of the view that with the implementation of Trans Mountain’s environmental protection procedures, and full compliance with the Board’s recommended terms and conditions, the Project is not likely to cause significant adverse environmental effects.

On November 29, 2016, following seven months of consultations, which included a four-month extension of the legislated timeline to allow for deeper Indigenous consultations and public engagement on the Project, the Governor in Council issued Order in Council P.C. 2016-1069, accepting the Board’s recommendation that the Project will be required by the present and future public convenience and necessity under the NEB Act and will not likely cause significant adverse environmental effects under the CEAA, 2012.

Interim strategy and measures for project reviews

In January 2016, the Government announced an interim strategy to guide its decisions on major projects pending the outcome of the ongoing reviews of Canada’s environmental assessment and regulatory processes. Under this approach, the Government articulated a commitment to enhanced Indigenous and public consultations as well as an assessment of upstream greenhouse gas (GHG) emissions to inform its decision on projects. To support these activities, the Governor in Council extended its timelines by four months to enable robust engagement. These principles continue to guide the Government’s decisions on major project reviews, including the reconsideration of the Project. A significant body of evidence was established through the initial review of the Project by the NEB, public engagement and Indigenous consultations. Reconsideration of the Project has been done with the view of considering all factors and evidence available since the proponent filed its application in 2013, including information emerging from the reinitiated Phase III consultation process.

Under the January 2016 interim approach for major projects review, five principles were used to guide the Government’s decision: (i) no project proponent will be asked to return to the starting line; (ii) decisions will be based on science, traditional knowledge of Indigenous peoples and other relevant evidence; (iii) the views of the public and affected communities will be sought and considered; (iv) Indigenous peoples will be meaningfully consulted, and where appropriate, impacts on their rights and interests will be accommodated; and (v) direct and upstream greenhouse gas emissions linked to the projects under review will be assessed.

At the direction of the Governor in Council, on December 1, 2016, the Board issued Certificate of Public Convenience and Necessity OC-064 to Trans Mountain Pipeline ULC in respect of the proposed construction and operation of the Trans Mountain Expansion Project, subject to terms and 157 conditions set out in Appendix 3 of the Board Report of May 19, 2016, entitled Trans Mountain Expansion Project OH-001-2014, and issued to Trans Mountain Pipeline ULC Amending Orders AO-002-OC-49 and AO-003-OC-2.

Condition compliance, detailed route and non-route certificate variances

Beginning in December 2016 and until the Project certificate was quashed, on August 30, 2018, the Board reviewed and approved compliance with many of the 157 certificate conditions, 96 of which were related to pre-construction activities. The Board also held seven detailed route hearings and considered two non-route certificate variance applications (related to Project facilities such as storage tanks) for the Project, and recommended that all nine variances be issued. The seven route variances were intended to minimize interactions with private residences, water wells, critical habitat, a light rail expansion, City of Coquitlam municipal utilities, and a BC Hydro right-of-way that was no longer a viable route for the pipeline to follow. The two non-route variances were made to the Certificates for the existing Line 1 pipeline, and the previous Anchor Loop expansion. For Line 1, a pump station that was previously going to be reactivated was amended to remain deactivated, and a storage tank in Edmonton that was previously going to be replaced was instead amended to remain in operational service. For the Anchor Loop segment, a pump station that was previously going to be deactivated was amended to remain in operational service.

The Governor in Council accepted the Board’s recommendations and issued Orders in Council P.C. 2018-0859, P.C. 2018-0549, P.C. 2018-0356, P.C. 2018-0355, P.C. 2018-0354, P.C. 2018-0353, P.C. 2018-0352, and P.C. 2018-0058, authorizing the NEB to issue Amending Orders AO-004-OC-2, AO-003-OC-49, AO-001-OC-064, AO-002-OC-064, AO-003-OC-064, AO-004-OC-064, AO-005-OC-064, AO-006-OC-064, and AO-007-OC-064.

Federal government project purchase

On May 29, 2018, the Government of Canada announced that it had reached an agreement with Kinder Morgan to purchase the company’s Trans Mountain Expansion Project and related pipeline and terminal assets. On August 31, 2018, this purchase was completed, net of adjustments, for approximately $4.4 billion. The Governor in Council, on the recommendation of the Minister of Finance, issued a series of Orders in Council on May 31, 2018, and June 1, 2018, authorizing the acquisition: P.C. 2018-0635, P.C. 2018-0670, P.C. 2018-0672, P.C. 2018-0675, and P.C. 2018-0677. The Project is owned by Trans Mountain Corporation, a wholly owned subsidiary of the Canada Development Investment Corporation (CDEV). It is not the intention of the Government of Canada to be a long-term owner of the project. At the appropriate time, Canada will work with investors to transfer the project and related assets to a new owner or owners, in a way that ensures the project’s construction and operation will proceed in a manner that protects the public interest.

Federal Court of Appeal decision

On August 30, 2018, the Federal Court of Appeal quashed Order in Council P.C. 2016-1069 in its decision in Tsleil-Waututh Nation and remitted the matter of Project approval to the GIC for prompt redetermination.

The Court decision noted that “Given the Board’s approach to the assessment and its findings, the Board’s report was adequate for the purpose of informing the Governor in Council about the effects of Project-related marine shipping on the Southern Resident Killer Whales and their use by Indigenous groups.” However, the Court ruled that the Board’s decision to exclude Project-related shipping from its environmental assessment under the CEAA, 2012 was not adequately justified. The Court concluded, among other things, that the Board ought to reconsider on a principled basis whether Project-related marine shipping is incidental to the scope of the Project, the application of section 79 of the Species at Risk Act (SARA), to Project-related shipping, the Board’s environmental assessment of the Project in light of the Project’s scope, the Board’s recommendation under subsection 29(1) of the CEAA, 2012 and any other matter the Governor in Council should consider appropriate. In addition, the Court ruled that Canada must redo its Phase III Indigenous consultation on the Project. The Court concluded, among other things, that although Canada acted in good faith and that the consultation framework was appropriate, the 2016 consultations did not adequately take into account the concerns of Indigenous groups or explore possible accommodation of those concerns.

GIC reconsideration direction to the NEB

On September 20, 2018, the Governor in Council issued Order in Council P.C. 2018-1177, which referred back to the Board for reconsideration the recommendations and all terms or conditions set out in its May 19, 2016 Initial Report of May 19, 2016, which recommended the initial approval of the Project, that are relevant to addressing the issues specified by the FCA in paragraph 770 of the Tsleil-Waututh Nation decision, including Conditions 91, 131 to 134, 144 and 151.

The Order directed that the Board conduct the reconsideration, taking into account the environmental effects of Project-related marine shipping in view of the requirements of the CEAA, 2012, and the adverse effects of Project-related maritime shipping on species at risk, including the Northeast Pacific southern resident killer whale population, and their critical habitat, in view of any requirements of section 79 of SARA that may apply to the Project; and submit a report on its reconsideration to the Minister of Natural Resources no later than 155 calendar days from the issuance of the Order.

Implications

Initial designated project review and scope — Marine shipping-related impacts

In its initial review (2014–2016), the Board’s scope assessment of the Project under the CEAA, 2012 encompassed Edmonton to Burnaby, up to and including the WMT —the extent of the Board’s regulatory oversight of the Project. Under the NEB Act, the Board determined that potential environmental and socio-economic effects of Project-related tanker traffic, including the potential effects of accidents or malfunctions that may occur, are relevant to the Board’s consideration of the public interest.

While the Board did not include Project-related marine shipping activities in the designated Project under the CEAA, 2012, since it considered that these are not regulated by the Board and are outside its authority, the Board considered the potential effects of increased marine shipping activities as part of its overall public interest determination under the NEB Act. In the Board’s Initial Report, there were conditions that relate to marine shipping, including, Condition 91 — Plan for implementing, monitoring and complying with marine shipping-related commitments; Condition 131 — Marine public outreach program; Condition 133 — Marine shipping-related commitments, including spill response regime, tanker tug escort; Condition 134 — Updated tanker acceptance standard; Condition 144 — Ongoing implementation of marine shipping-related commitments; and Condition 151 — Post-construction environmental monitoring reports, among others.

NEB environmental assessment

The NEB has a mandate to conduct an environmental assessment under the CEAA, 2012. The construction and operation of a new pipeline with a length of 40 km or more are designated activities regulated by the Board, as prescribed under item 46 of the Schedule to the Regulations Designating Physical Activities (SOR/2012-147). In 2016, the Board concluded under the CEAA, 2012, that with the implementation of Trans Mountain’s environmental protection procedures, and full compliance with the Board’s recommended terms and conditions, the Project as designated is not likely to cause significant adverse environmental effects.

Following the FCA decision, through the reconsideration process, the Board expanded the scope of the designated project to be assessed under the CEAA, 2012 to include Project-related marine shipping between the Westridge Marine Terminal and the 12-nautical-mile territorial sea limit.

The Board conducted a full environmental assessment for the Project as designated, and for the expanded scope of the project. An assessment of Project-related marine shipping was undertaken in accordance with the requirements of the CEAA, 2012, SARA, the Order in Council (P.C. 2018-1177) and the Tsleil-Waututh Nation Court decision. This included a comprehensive assessment of the factors and environmental effects set out in sections 19 and 5 of the CEAA, 2012, respectively.

In the reconsideration report, the Board made its recommendations under subsection 30(4) of the CEAA, 2012. Specifically, the Board needed to confirm, or set out a different recommendation, regarding whether the designated Project is likely, or is not likely, to cause significant adverse environmental effects after taking into account the implementation of mitigation measures, including the Board’s recommended conditions. The environmental assessment is included in the Board’s Reconsideration Report in Chapter 10.

Under subsection 53(6) of the NEB Act, the Board must assess the benefits and burdens of the Project, including environmental impacts, in its recommendation as to whether the Project is and will be required by the present and future public convenience and necessity. After reviewing the entire record for the Project in both the 2014–2016 review process and the reconsideration process, and taking into account the expanded scope of the designated project, the Board has reached a new determination. Under the CEAA, 2012, the NEB determined that the Project would result in significant adverse environmental impacts. However, the NEB recommended that the GIC find that the impacts are justified in the circumstances. The determination of significant adverse effects was based on several factors, for which the NEB offered a range of conditions and recommendations. The Board found that Project-related marine shipping would result in significant adverse environmental impacts on the Southern Resident Killer Whale (SRKW), and on Indigenous cultural use associated with the SRKW, despite the fact that effects from Project-related marine shipping will be a small fraction of the total cumulative effects, and that the level of marine traffic is expected to increase regardless of whether the Project is approved. The NEB also found that GHG emissions from Project-related marine vessels are likely to be significant, and while a credible worst-case spill from the project or Project-related vessel is not likely, if it were to occur, the environmental effects would be significant. Nevertheless, the Board recommended that the GIC find these impacts justifiable in the circumstances in light of the considerable benefits of the Project and measures to mitigate the adverse effects.

SARA determination

Pursuant to section 79 of the Species at Risk Act (SARA), the Board is required to notify competent ministers in writing if the Project is likely to affect a listed wildlife species, and identify the adverse effects of projects on each SARA-listed wildlife species and its critical habitat. The Board must also ensure that measures are taken to avoid or lessen those effects, and to monitor them if a project is carried out. On April 23, 2014, the Board notified the Minister of Environment and Climate Change Canada, the Minister of Fisheries, Oceans and the Canadian Coast Guard, and the Parks Canada Agency that the Project, if approved and constructed, may affect a number of species listed on Schedule 1 of SARA (SARA-listed species) and/or their habitat. This notification included the species that may be affected by the Project-related marine shipping. As part of the reconsideration process, on November 14, 2018, pursuant to subsection 79(1) of SARA, the Board notified the Minister of Environment and Climate Change and the Minister of Fisheries, Oceans and the Canadian Coast Guard that the Project, if approved and constructed, may affect additional species listed on Schedule 1 of the SARA and/or their habitat.

In the FCA decision, the Board was required under section 79(2) of SARA to identify all technically and economically feasible measures that are available to avoid or lessen the Project’s adverse effects on the SRKW, so that such measures could be considered by the GIC.

In compliance with the direction of the FCA, the NEB provided, for the GIC’s consideration, sixteen (16) recommendations to mitigate, avoid, or lessen the effects of Project-related marine shipping that are beyond the scope of the Board’s regulatory authority and Trans Mountain’s control, but within the authority of the GIC, many of them related to impacts on species at risk and their habitat. The Government has reviewed the recommendations for technical and economic feasibility and has set forth an implementation plan for all 16 recommendations.

Southern Resident Killer Whale

The Southern Resident Killer Whale (SRKW) is listed as endangered in Schedule 1 of the SARA. It is one of four distinct populations of killer whale that inhabit the Pacific waters off the coast of British Columbia. The SRKW typically occupies the waters of the Salish Sea and of the outer coasts of Southwestern Vancouver Island and Washington State. The SRKW is considered at risk because of its small population size, low reproductive rate and the existence of a variety of threats, including human activity. Project-related marine shipping would overlap with SRKW critical habitat along the shipping route. The SRKW is also of particular cultural and spiritual significance to Indigenous groups in the Salish Sea area.

In its initial review and in reconsideration, the NEB concluded that, without further mitigation, the operation of Project-related marine vessels is likely to result in significant adverse environmental effects on the SRKW and on Indigenous cultural use associated with the SRKW, which is of unique cultural and spiritual significance to Indigenous groups. In its Reconsideration report (MH-052-2018), the NEB included its original assessment and findings related to listed species at risk, and supplemented it with a new assessment of the potential effects of the marine shipping component of the project on listed species at risk.

The NEB, having reviewed the submissions and technical evidence from all intervenors, concluded that these impacts will arise despite the fact that Project-related marine shipping will be a small fraction of the total cumulative effects (e.g. from thousands of cargo ships, ferries and small crafts). In addition the level of marine traffic is expected to increase, regardless of whether the Project is approved; the NEB’s conditions are designed to avoid or lessen those effects and to monitor them; and should the Government implement the NEB’s 16 recommendations, they could offset the incremental effects of the Project and make material improvements to the health of the Salish Sea (in particular recommendations 5 and 6, which are directly focused on the SRKW). The Board also noted that while there are likely significant adverse effects on the SRKW from Project-related shipping, the offset approach proposed in its recommendations to the GIC could allow for a reduction in that finding to non-significant effects if and when Project-related shipping effects have been effectively reduced to net zero in each relevant section of the proposed shipping route.

Action to support the recovery of the SRKW

Canada continues to mitigate, monitor, and adaptively manage measures to avoid or lessen adverse effects on the SRKW and its critical habitat.

Since the NEB’s OH-001-2014 Report in May 2016, the Government has advanced a comprehensive strategy to protect ocean ecosystems and to support the recovery of the SRKW. The Government of Canada has been working closely with industry stakeholders, Indigenous peoples, environmental non-governmental organizations (NGOs), academia, the scientific community, and international partners to identify, test and analyze options to reduce the three primary threats to SRKW (i.e. physical and acoustic disturbance, prey availability, and contaminants). Building on this work, in June 2018, the Government of Canada announced the Whales Initiative, a $167.4 million investment in actions and necessary scientific research on the key threats affecting the SRKW and other priority whales. In October 2018, following the findings of the Minister of Fisheries, Oceans and the Canadian Coast Guard and the Minister of Environment and Climate Change Canada that SRKW are facing imminent threats to their survival and recovery, $61.5 million was announced for additional measures to support the SRKW. The proposed action plan for SRKW sets out the measures to achieve recovery objectives established under the Species at Risk Act, and the Government is working with partners to complete those actions.

On May 10, 2019, additional enhanced measures to protect the SRKW were announced, which aim to address physical and acoustic disturbances, including an inshore traffic displacement in the Strait of Juan de Fuca, an expansion of the Haro Strait vessel slowdown, an increased mandatory approach distance of 400 m from SRKW for all vessels, including recreational boaters and whale watching vessels, and interim sanctuary zones. All of these initiatives are intended to reduce cumulative effects on the SRKW and are designed to more than offset Project-related marine shipping impacts. In addition, in the last two years, Fisheries and Oceans Canada (DFO) implemented fisheries management measures to provide more prey to SRKW in critical habitat. These initiatives are intended to reduce cumulative effects on the SRKW and are designed to offset the impacts of Project-related traffic. Canada continues to mitigate, monitor, and adaptively manage these measures to avoid or lessen the adverse effects of Project-related marine shipping on SRKW and its critical habitat.

Cumulative effects

The Government is also strengthening research into cumulative effects to establish baselines to inform further actions. Various research and data collection initiatives as well as Indigenous engagement and collaboration projects are also underway. These include a Coastal Environmental Baseline Program that will collect data at six pilot sites over the next four years, including in the port of Vancouver, and a national Cumulative Effects of Marine Shipping Initiative at six pilot sites, including one in the south coast of British Columbia, which will include regional cumulative effects assessments at each pilot site and the identification of potential tools and strategies that can be applied to existing or future vessel movements. A number of Indigenous communities recommended that a regional cumulative effects management plan for the Salish Sea should be developed. Additional actions are outlined in the Government response to the NEB Reconsideration Report’s recommendations.

Trans Mountain has also committed to a series of actions supporting the recovery of the SRKW. For example, as part of its Marine Mammal Protection Program, Trans Mountain has committed to support the objectives and recovery measures identified in the action plan for the species.

Oceans Protection Plan

In response to what was heard during the NEB initial review of the Project and through initial Crown consultations, on November 7, 2016, the Government of Canada launched the $1.5 billion Oceans Protection Plan (OPP), the largest investment Canada has ever made to protect coasts and marine environments. This funding will enhance marine safety along Canada’s entire coastline — the longest in the world — supporting new and ongoing prevention, preparedness and response measures. The marine safety improvements from the OPP, building on the robust system already in place, are putting extraordinary safeguards in place for all vessels, including those carrying petroleum products. To complement Canada’s world-leading marine safety regime and response capacity, the OPP will add to the already significant body of scientific knowledge concerning petroleum products in the marine context and incorporate Indigenous knowledge. The OPP initiatives directly respond to the marine safety concerns that have been raised through previous consultations, including those on the Project. Many of the improvements under the OPP are already, or will be, in place before marine shipping associated with the proposed Project would begin, and are being developed and implemented in partnership with coastal Indigenous groups. Indigenous groups will continue to be engaged on various Oceans Protection Plan initiatives to inform, enhance transparency, establish partnerships, and work towards inclusion in the marine safety system.

Risk of marine spills

After reviewing numerous reports and testimonies in the initial review of the Project and in the reconsideration, the NEB concluded that there is a very low probability of a large marine spill from a Project-related tanker that may result in significant effects. The NEB found that a credible worst-case spill as a result of the Project or Project-related shipping is unlikely, however, if it occurred, it would have significant environmental impacts. The NEB found that although the impacts of a credible worst-case spill would likely be adverse and significant, natural recovery of the impacted areas and species would likely return most biological conditions to a state generally similar to pre-spill conditions. However, for some valued components, including certain SARA-listed species, recovery to pre-spill conditions may not occur.

Chapter 14 of the Reconsideration Report discusses the potential risks of an oil spill, and spill response. Trans Mountain and Western Canada Marine Response Corporation (WCMRC) have committed to implement an enhanced marine oil spill response. WCMRC said the response would include 43 new response vessels, eight new spill response bases in the Salish Sea, including 24/7 on-water bases in Vancouver Harbour and North Saanich, and approximately 120 new employees, most of whom would be assigned to new bases on Vancouver Island. The Board noted that tangible changes to spill prevention mitigation, such as enhanced tug escort, and expanded research on the potential fate and behaviour of diluted bitumen and response capacity, have improved the overall spill response regime, would enable improved spill response times, and will support timely consideration of appropriate response technologies and other measures.

Condition 133 (Confirmation of marine spill prevention and response commitments) requires Trans Mountain to submit its enhanced spill response regime to confirm that spill response capacity is in place at least three months prior to operating the Project. Transport Canada and the Canadian Coast Guard are jointly working to enhance federal monitoring, coordination and on-water response capacity. Through the Oceans Protection Plan (OPP), Transport Canada is increasing its marine emergency management, planning, coordination and response capacity. In addition, the investments under the OPP are allowing the Canadian Coast Guard to increase on-water response capacity for marine emergencies. The OPP investments underway to improve marine safety in general, the NEB conditions for this Project, and the additional actions taken by the Government in accommodations and in response to the NEB recommendations all combine to create multiple layers of protection to achieve the goal that marine shipping under the Project has the highest level of marine safety and exceeds international conventions and standards.

Canada has established a robust ship-source oil pollution liability and compensation regime under the Marine Liability Act that holds the polluter liable and shares responsibility between the shipowner and the cargo owner. Recent amendments to the Marine Liability Act made in December 2018 further strengthen the regime and ensure that the Ship-source Oil Pollution Fund (SOPF) is able to provide effective and adequate compensation to all Canadians affected by marine oil spills. Significantly, the amendments included removing the limit as to how much compensation is available under the SOPF; therefore, there is now unlimited compensation available under the SOPF to supplement what is available from shipowners and the international funds.

Other environmental impacts

The Board assessed the environmental impacts of the Project under both the NEB Act and the CEAA, 2012. The environmental assessment under the CEAA, 2012 assessed (i) the physical works and activities making up the Project; (ii) the biophysical and socio-economic elements defined in section 5 of the CEAA, 2012 that are likely to be affected by the Project; and (iii) the factors that must be taken into account in conducting an environmental assessment under section 19 of the CEAA, 2012. These include matters related to physical environment and soils, including water quality and quantity, fish and fish habitat, wetlands, wildlife and wildlife habitat, species at risk under SARA, atmospheric and acoustic environment, heritage resources, traditional land and resource use, navigation and navigation safety. For the initial review of the Project, federal scientists also provided 2 250 pages of technical advice on issues related to terrain mapping, pipeline safety, emergency preparedness and response, effects on wildlife, air quality, environmental emergencies, marine fish, mammals and fish habitat as well as anchorage and channel design.

In addition to Trans Mountain’s proposed mitigation measures for the Project-related environmental effects, the Board would impose on Trans Mountain 45 terms and conditions through the Project Certificate aimed at specifically addressing environmental issues raised by hearing participants (intervenors and commenters) and the Board. These conditions relate to air quality (6 conditions); GHG emissions (2); surface water quality and quantity (5); fresh water fish and fish habitat (5); soil and soil productivity (10); rare plants and lichens and vegetation (9); forest (1); weeds (2); terrestrial wildlife and wildlife habitat, including migratory birds (9); woodland caribou (4); grizzly bear (2); other species at risk (3); parks and protected area (8); marine sediments and water quality (1); marine fish and fish habitat (2); marine mammals (1); accidents and malfunctions (2 conditions).

Safety of the pipeline and facilities

The design and construction of the pipeline is governed by the CSA-Z662 Standard, Oil and Gas Pipeline Systems. The Board assessed and tested evidence for project design and potential safety risks, considering all of the hazards and potential hazards that are associated with the pipeline systems. The proponent needs to demonstrate that the appropriate safety, pipeline integrity and risk management plans and measures are in place.

As a result of the initial review and reconsideration, the NEB recommended 156 conditions to the Project to cover a wide range of matters, including safety and integrity of the pipeline and protection of the environment. Several participants in the NEB review processes, public consultations and Crown consultations have expressed concerns about the possibility of a leak on the pipeline or at the associated facilities and the risk of a spill and fire at the Edmonton and Burnaby tank terminals. After assessing the evidence, the Board determined that there is a low probability for both to occur with the safety system in place, but it imposed conditions that would further enhance monitoring and response in the unlikely event of an accident. Trans Mountain has committed to continue to monitor the pipeline system around the clock, and use a network of sensors, in-line inspection tools and other leak detection systems to deploy Emergency Shut Down systems with both automatic and remote shut down capability; 72 remote mainline block valves of which 71 will be automated; and the use of horizontal directional drilling (HDD) at 23 major water crossings. Potential high hazard and consequence areas, including at all major and most minor water crossings (covered by Conditions 17 and 115), would use heavy walled pipe (beyond minimum required Canadian Standards Association specifications).

During the review process and in public consultations, concerns were raised about hazards associated with a worst-case scenario release at storage tanks, the design of those tanks and emergency management. The Board assessed issues related to the geotechnical design, containment and emergency response and imposed a number of conditions on the Project (including Conditions 22, 24 and 129). The Board continues to regulate existing facilities and detailed engineering design for new facilities would be subject to a rigorous verification process.

The Government updated the pipeline safety regime through the Pipeline Safety Act, which came into force in June 2016. The Act includes $1 billion in “absolute liability” for companies operating major crude oil pipelines to clarify that operators will be responsible for all costs associated with spills, irrespective of fault, up to $1 billion; operators remain liable on an unlimited basis beyond this amount when they are found to be negligent or at fault. The Act also requires proponents to carry cash on hand to ensure they are in a position to immediately respond to emergencies.

Terrestrial species at risk and migratory birds

For terrestrial species at risk and marine migratory birds, the NEB imposed 5 conditions for Woodland Caribou and Southern Mountain Caribou, and 12 conditions to address adverse effects to Spotted Owl, Grizzly Bear, plants and other species at risk. The Project would cross each of the Wells Gray-Thompson and the Mount Robson local population units of Woodland Caribou, Southern Mountain population. The proposed Hinton to Hargreaves pipeline reactivation segment would cross the South Jasper caribou range. These woodland caribou are listed as threatened under Schedule 1 of SARA. The Board agrees with ECCC’s recommendation that destruction of woodland caribou critical habitat should be avoided. The Board would impose Condition 36 requiring Trans Mountain to file a pre-construction caribou habitat assessment for each caribou range potentially affected by the Project, which would describe the type of habitat characterized by biophysical attributes of critical habitat, as defined in the Southern Mountain Caribou Recovery Strategy. The Board would also impose Condition 37 and Condition 128 requiring Trans Mountain to file a Caribou Habitat Restoration Plan and an Offset Measures Plan for Residual Effects on Caribou Habitat. These would restore as much habitat as possible, assist in identifying and quantifying the extent of any unavoidable and residual habitat loss that remain, and offset such unavoidable and residual effects. Requirements to monitor and report on the effectiveness of habitat restoration and offset measures would also be imposed by the Board (Conditions 149 and 150).

With respect to protecting grizzly bear critical habitat, the Board notes that Trans Mountain’s proposed pipeline corridor does not avoid the North Cascades Grizzly Bear Population Unit due to potential effects on another provincially threatened grizzly bear population unit. The Board would impose Condition 47 and Condition 56. Condition 47 requires Trans Mountain to file an access management plan that would include monitoring for effectiveness of access control measures and adaptive management measures, if needed, based on monitoring results. Since the 2016 report, Grizzly Bears have been listed under Schedule 1 of SARA as species of special concern. Under SARA, critical habitat is not identified for species of special concern.

The Board’s conditions also include a requirement for a Wetland Survey and Mitigation Plan, a Wetland Reclamation Evaluation and Offset Plan, a Riparian Habitat Management Plan, a Riparian Habitat Reclamation Evaluation Report and Offset Plan, a Grasslands Survey and Mitigation Plan, and a Grasslands Reclamation Evaluation Report and Offset Plan. These conditions will mitigate various adverse effects, including on some species at risk and on migratory birds. Appendix 13 of the Reconsideration Report outlines all federally listed wildlife terrestrial species at risk potentially affected by the Project.

Freshwater fish and fish habitat

The Board heard that the cumulative effects on freshwater fish and fish habitat differ in the various watersheds crossed by the pipeline corridor. The Board acknowledged that for some species and watersheds, existing cumulative effects could be considered substantial or above environmental regulatory thresholds, but concluded that, taking into account the mitigation measures, the Project’s contribution to those cumulative effects on fish and fish habitat is expected to be relatively minor.

The Board concluded that the impacts from construction and operation of the project are expected to be of low magnitude, taking into account the proposed mitigation measures, reclamation activities and post-construction environmental monitoring. For those individual watercourse crossings where there is the potential for serious harm to fish or effects on listed aquatic species, the proponent would be required to apply for authorizations under the Fisheries Act ou permits under SARA. Any authorization would include appropriate offsets or conditions, and therefore these effects are expected to be moderate in magnitude. The Board concluded that the pipeline construction and operation is not likely to result in significant adverse environmental effects.

GHG emissions associated with the project

The Project will either produce or be associated with emissions from its construction, its operation and from the upstream production and transportation of the additional oil the pipeline will carry.

Trans Mountain estimates that the construction of the Project will generate about 1 megatonne (Mt) of GHG emissions, with about 90% of those from land clearing activities. Two NEB conditions (140 and 142) will require Trans Mountain to offset those emissions, with the outcome that the construction of the project will not result in any net emissions.

The operation of the project will have emissions from two sources: on land (pipeline and port activities) and marine shipping. Trans Mountain estimates that the pipeline and port activities will generate about 400 000 tonnes of GHG emissions annually. These will come primarily from the electricity needed to power the pumping stations, but will also be from some ground transportation and from possible methane leaks. These activities will be subject to carbon pollution pricing in British Columbia and Alberta and to federal and provincial methane regulations, and therefore are likely to decline over time.

In its reconsideration report, the NEB concluded that GHG emissions from Project-related marine vessels would result in measurable increases and are likely to be significant, although a small percentage of total Canadian emissions. The NEB recommends that the Government support the development and implementation of GHG reduction measures for marine shipping in the area that would align with the final International Maritime Organization (IMO) Strategy in the year 2023 for reducing GHG emissions (Recommendation 10). These measures could include facilitating the use of low-carbon fuels and energy-efficient technologies, and requirements to offset any increases in marine emissions above a given baseline year. The recommendation asks the Government to develop related measures and monitor resulting GHG reductions. The NEB concluded that, if the Government implements the Board’s recommendation to develop and implement GHG reduction measures for marine shipping that align with the final IMO strategy by 2023, the GHG emissions from Project-related shipping would be reduced. The NEB also noted that Project-related marine vessels are required to adhere to all federal and international emission requirements, including standards for bunker fuel. In addition, the Board is of the view that, with the new energy efficiency standards adopted by the IMO in 2011, and with the planned regulations for federal clean fuel standard, the Project-related GHG emissions will be further diminished. The Government intends to implement this recommendation.

In accordance with the Interim Principles, Environment and Climate Change Canada conducted an assessment of the potential GHG emissions associated with the upstream activities associated with the Project. ECCC released a draft assessment report for public comment on May 19, 2016, and a final version on November 25, 2016. ECCC concluded that the Project is unlikely to result in incremental emissions beyond those already included in Canada’s national emissions projections. ECCC’s assessment noted that the Project will add pipeline capacity of about 590 000 barrels per day. ECCC estimated that the emissions associated with producing this additional oil and gas will be about 13 to 15 Mt of CO2 equivalent per year. However, ECCC also concluded that these emissions are not likely to add to the emissions already included in Canada’s national emissions projections for the oil and gas sector. This is because the added pipeline capacity from the Project is not likely to lead to increased oil production beyond the increases that are already incorporated in Canada’s emissions forecasts. These forecasts assume that most or all of the additional oil and gas that can be transported by the Project will be produced and moved to market by some other mode if the project does not proceed.

As a result, the Project and any growth in production associated with the Project, are not likely to increase oil sands emissions above the Alberta legislated cap on oil sands emissions of 100 Mt of CO2 equivalent per year.

Air pollution

Since the issuance of the Board’s OH-001-2014 Report in May 2016, Trans Mountain prepared an updated air quality assessment for the Project, which assumed the inclusion of tanker ship boiler emissions from three berth locations, three anchorage locations, and under way vessels. Trans Mountain also filed an air quality assessment report that was prepared for the Vancouver Fraser Port Authority (VFPA) that is consistent with the VFPA permit application process.

Alternative means of carrying out the project

The initial review of the Project included extensive evidence and considerations for various alternate marine terminal locations, alternate shipping routes and pipeline routes as well as alternatives to the Project itself, such as oil by rail transportation. The Board also required Trans Mountain to provide a rationale for choosing Westridge Marine Terminal as the preferred alternative. Trans Mountain said that it considered both northern and southern route alternatives, but favoured expansion of the existing system south over northern lateral and terminal due to greater technical challenges, increased footprint and potential impact, and greater costs and uncertainty. Trans Mountain also provided reasoning for eliminating alternative southern locations. For the MH-052-2018 Reconsideration hearing, the Board considered the additional evidence submitted by intervenors and comments related to technical and economic feasibility of alternative marine terminal locations, including Roberts Bank and Kitimat. The Board found that the selection of general areas considered by Trans Mountain as alternatives in each of the northern-leg and southern-leg options for the Project was reasonable.

Economic impacts

The NEB concluded in its Initial Report, after weighing evidence submitted in favour and against the Project, that forecasted supply and market demand growth, combined with robust contractual and financial underpinnings for the Project, demonstrate that the facilities would generate high utilization rates based on market demand. The NEB noted considerable national and regional economic benefits for Canada, including increased access to diverse markets for Canadian oil, jobs created across Canada, the development of local and Indigenous individuals, communities, and businesses, direct spending on pipeline materials in Canada and considerable revenue to various levels of government. Access to markets other than the U.S. market is considered a strategic economic advantage to Canada.

The NEB noted that the Project is underpinned by firm commitments from shippers for approximately 80% (707 000 b/d) of the nominal capacity of the expanded pipeline system, in the form of long-term (15 or 20 years) contract commitments. The NEB proposed Condition 57, requiring Trans Mountain to file with the Board 90 days prior to construction, a signed confirmation that secured agreements or contracts remain in force with shippers for a minimum 60% of its total capacity. The existing Trans Mountain system has been running at full capacity and has been oversubscribed since 2006, underscoring the strong market demand for additional capacity on the Project. The Project is expected to increase the value of Canadian oil by unlocking access to world markets. Following a review process, the NEB found the economic arguments in favour of project benefits and the methodology (as outlined in the Muse-Stancil report) used to calculate those benefits were both reasonable. Trans Mountain said the largest contribution of the Project to tax revenues and investment would come from higher prices that oil producers would get for their oil (netbacks) across the whole Western Canadian Sedimentary Basin (WCSB). The NEB noted that the need for the Project is not negated by short-term market fluctuations.

Based on evidence it submitted to the NEB, Trans Mountain estimated $73 billion in increased revenues for producers over 20 years. Higher Canadian oil export prices are also expected to increase tax contributions from oil and gas corporate income taxes and dividends. This fiscal benefit to governments was estimated to be $46 billion, over the same period. These figures underscore the point that these benefits are substantial. Significant Indigenous economic benefits as a result of Mutual Benefit Agreements are also expected.

Based on the investment in the Project and the proponent construction plans in the initial review, the Project would create many jobs across Canada. An estimated 400–600 workers per spread would be needed for pipeline construction; between 60 and 370 workers would be needed for tank construction; 95 workers would be needed for the Westridge Marine Terminal; and 443 jobs are expected to be created over the first 20 years of operation.

For its consideration of the Project’s economic impact, the GIC had a range of current and historical information available to it, including the Reconsideration Report and the information referred to the GIC through the Phase III consultation process.

Consultations

Crown consultations with Indigenous peoples on the Project were conducted in 2013–2016 and following the FCA decision, the Crown reinitiated Phase III consultations in fall of 2018. The NEB conducted a public hearing process in 2014–2016 for the initial review of the Project and then again for the reconsideration in 2018–2019.

Initial Indigenous Crown consultations

During the initial NEB review of the project (2014–2016), 73 Indigenous groups (representing 83 Indigenous communities) participated as intervenors in the hearing and provided their comments, views and evidence through written submissions and oral evidence to the Board. A total of 35 Indigenous groups and individuals provided oral traditional evidence to the Board during the hearing. To date, the proponent has concluded benefit agreements with 43 Indigenous groups.

The Crown has a legal duty to consult and, where appropriate, accommodate when the Crown contemplates conduct that might adversely impact potential or established Aboriginal or Treaty rights. Consistent with the approach taken on other major pipeline projects, the consultation process with potentially impacted Indigenous groups was carried out in four phases: Phase I – Early Engagement (December 2013–April 2014): The Crown communicated project information and the planned Crown consultation process to potentially affected Indigenous groups via correspondence and a series of early engagement meetings; Phase II – NEB Hearings (April 2014–February 2016): Indigenous groups were able to participate in the NEB hearing process as commenters or intervenors in order to have their concerns placed on the hearing record; Phase III – Government Decision (February 2016–November 2016): the Crown engaged in consultation meetings and exchanged correspondence with Indigenous groups in order to identify each Indigenous group’s issues and concerns that had not been adequately addressed by the NEB’s conditions or by legally binding proponent commitments; Phase IV – Regulatory Authorizations (if necessary): following a GIC decision to approve the Project, implicated departments consulted with Indigenous groups prior to the issuance of any necessary regulatory permits.

To evaluate the adequacy of the consultations, including accommodations, Natural Resources Canada (NRCan) assessed each Phase of the process, and evaluated a range of elements including the opportunities for engagement, issues raised, proposed mitigation measures, the Board responses and conditions and other relevant measures. The assessment was reflected in a written report, the 2016 Consultation and Accommodation Report (CAR). The CAR documented the Crown’s consultation process with 117 Indigenous groups. Concerns from Indigenous groups expressed during the consultation process included cumulative impacts from increased marine shipping, risks related to land-based and marine spill impacts to asserted title and need for consent, uncertainty around proponent compliance with NEB conditions, and concerns with the existing pipeline.

2016 accommodation measures

To respond to Indigenous community concerns, the Government committed $64.7 million in funding for the Indigenous Advisory and Monitoring Committee (IAMC). The IAMC was intended by government to be an accommodation in response to Indigenous concerns about the Trans Mountain Expansion Project (TMX). Following a co-development process, which established the IAMC-TMX and Indigenous representation, the Committee began work to dialogue and to address the concerns of the Indigenous communities. The IAMC has been working with the Government, federal regulators, and the proponent to monitor and provide advice on project activities over the full life cycle of the project. The IAMC is a collaborative forum, not a rights-holding or representative body. In order to enable all potentially impacted Indigenous communities in the pipeline corridor to participate regardless of their position on the Project, the Terms of Reference make clear that all parties participate on a “without prejudice” basis. The Committee is mandated to provide advice to the NEB and other regulators on environmental, safety and socio-economic issues related to the performance of the Project, the broader NEB-regulated pipeline corridor, the marine terminal and marine shipping over the life cycle of the Trans Mountain Expansion Project and the existing Trans Mountain pipeline corridor. Between December 2017 and November 2018, IAMC Indigenous Monitors participated with regulators in 10 inspections and site visits, and in five emergency management exercises.

The Government also advanced a new Economic Pathways Partnership (EPP) to complement actions taken by the proponent to support Indigenous groups to take full advantage of economic development opportunities. Partner departments hosted six interdepartmental EPP workshops across the four western provinces between June 2017 and February 2018 to discuss how the initiative can effectively respond to the needs identified by Indigenous communities, organizations and businesses. Through the EPP, partner departments have funded 10 projects in British Columbia and Alberta to date, valued at over $4.5 million, to support Indigenous communities along the proposed Trans Mountain Expansion corridor.

Reinitiated Phase III consultations

Canada reinitiated Phase III consultations with a particular focus on rectifying the shortcomings identified by the Federal Court of Appeal. This included expanding the consultation team and building a consultation process that allowed for engaging in meaningful, two-way dialogue. Canada also undertook to design a process that would lead to a better understanding of the nature and scale of potential impacts on rights than the one that informed the 2016 consultation process. The consultations were focused on moving beyond listening and recording concerns to being able to provide concrete responses to the concerns that get raised at the consultation tables.

On September 28, 2018, Natural Resources Canada wrote to Indigenous groups potentially impacted by the Project-related marine shipping, encouraging them to participate in the NEB process. In this communication, the Crown made it clear that it intends to rely on the NEB reconsideration process, to the extent possible, to fulfill the legal duty to consult on Project-related marine shipping.

On October 3, 2018, the Government announced that it would reinitiate Phase III consultations on the Project. Following the announcement, the Minister of Natural Resources wrote to these potentially impacted Indigenous groups on October 5, 2018, outlining the Government’s intentions to engage in a specific and focused dialogue on the Project. The Government also appointed former Supreme Court of Canada Justice, the Honourable Frank Iacobucci, as a Federal Representative to oversee both procedural and substantive consultation matters. In reinitiating Phase III consultations, work was being guided by four core objectives: consult with all Indigenous groups that are potentially impacted by the Project; tailor consultations to reflect the potential impacts, preferences and capacities of each group and outstanding concerns with the Project from the existing Phase III consultations; consult meaningfully through a substantive two-way dialogue and accommodations, where appropriate; and consult in a way that is fully consistent with meeting Canada’s obligations under section 35 of the Constitution Act, 1982, and the Government’s commitments to advance reconciliation with Indigenous peoples, including its pledge to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

In response to requests from Indigenous groups, on April 17, 2019, the Governor in Council issued Order in Council P.C. 2019-0378 pursuant to subsection 54(3) of the NEB Act, extending the time limit for making the order referred to in subsection 54(1) of that Act to June 18, 2019, in respect of the Project, in order to ensure adequate time to conclude the reinitiated Phase III consultations with Indigenous peoples.

In a publicly released mandate, the consultation teams were instructed to consult and discuss accommodation measures with Indigenous groups in a meaningful and responsive two-way dialogue. The mandate was grounded in an understanding of past accommodation measures, as well as known outstanding Indigenous concerns. It was informed by an existing information base that included the Crown Consultation and Accommodation Report that was used to support the 2016 decision; an engagement record that had been built since the November 2016 decision; and available information from Trans Mountain Corporation’s engagement with Indigenous communities. Indigenous groups were also advised at the outset of the consultation process that participant funding would be made available in order to support their immediate engagement in the development of a Crown consultation approach and their consultations with Crown representatives on a longer-term basis regarding outstanding concerns related to the Project.

Throughout the reinitiated Phase III process, Canada sent a number of letters to communities in order to advise about and seek input into the consultation process. To further enhance transparency, Canada launched a website to serve as a focal point to engage Canadians on the Phase III process and the Project.

In response to the Court concern that initial consultations for the Project lacked someone “with the confidence of Cabinet” who could engage interactively, Canada established a system to communicate and seek direction from senior management and decision makers, including all Cabinet Ministers, on the issues being raised at the consultation table. This empowered the consultation teams to engage in a true two-way dialogue, both at the table and through correspondence. The Minister of Natural Resources provided regular updates to ministerial colleagues, and met with consultation leads and Justice Iacobucci to discuss the consultations process and specific accommodations. Since August 2018, the Minister of Natural Resources has held 46 ministerial meetings with over 65 Indigenous groups along the Project route to help in building relationships and supporting meaningful engagement.

The Crown Consultation and Accommodation Report (CCAR) examines the impact of the Project on Indigenous issues in five general areas: Impacts on Hunting, Trapping and Gathering; Impacts on Freshwater Fishing; Impacts on Marine Fishing and Harvesting; Impacts on Other Traditional and Cultural Practices; Impacts on Aboriginal Title. It also considers other elements of concern that were raised consistently by Indigenous groups across a number of consultations, such as the potential impact of the Project in the case of land or marine accidents and malfunctions. The area where potential impacts were identified was considered in greater detail to examine

The Crown Consultations and Accommodation Report was provided to all Cabinet Ministers prior to the GIC decision and was made public subsequent to the decision. The CCAR also highlights the ways in which the conditions that the NEB has set out for the Project will contribute to avoiding or mitigating the impact of the Project on Indigenous interests. In addition, the federal Crown has made, and continues to make, investments in areas that address many of the Indigenous concerns related to the Project. Canada has taken steps in a number of areas to address Indigenous concerns about a particular issue (e.g. conservation and recovery areas for caribou), which will also contribute to mitigating or minimizing the effect of the Project in these areas. Canada’s efforts in this area include measures on pipeline safety, environmental response, species at risk, fish and fish habitat protection and GHG reduction and climate change adaptation. The CCAR highlights some of those areas specifically, including the Oceans Protection Plan and the Whales Initiative. NRCan sent the final CCAR to Indigenous groups, reflecting feedback received over the five-week consultation period on the draft, as well as 45 independent submissions from Indigenous groups to ministers summarizing their views of the reinitiated Phase III process.

New accommodation measures

The CCAR also sets out how the impacts of the Project on Indigenous interests can be avoided or mitigated. Many of the recommended 156 conditions by the NEB, the proponent’s commitments under Impact Benefit Agreements, and previously announced Government programs such as the Oceans Protection Plan, will contribute to avoiding or mitigating many of the potential impacts of the Project. However, a number of specific, targeted accommodations measures were developed and proposed as part of the consultations. These were designed specifically to respond to concerns raised by Indigenous groups in the consultations, and to address areas where the consultations highlighted the potential for an enhancement to existing efforts or to close a programming gap in a particular area. Some of the initiatives address cumulative impacts that go beyond the Project and cover an ecosystem or a region. These initiatives include the following:

Public consultation

In line with the Government’s Interim Strategy for assessing major energy projects, the Minister of Natural Resources set up a three-member Ministerial Panel (the Panel) for the Project in May 2016. The Panel’s mandate was to solicit public input to inform the Government’s decision on the Project and at the same time provide an opportunity for interested individuals and groups that did not obtain intervenor status during the NEB hearing to share their views. The Panel had to do the following: i) review and consider input from the public; ii) meet with local stakeholder representatives to engage the public and impacted communities along the pipeline and shipping route; iii) meet with Indigenous groups that wished to share their views with the Panel, noting that the Panel’s work will complement, not substitute, the Crown consultations; and iv) submit a report to the Minister of Natural Resources no later than November 1, 2016.

In July and August 2016, the panel held 44 meetings in Alberta and British Columbia, which were attended by 2 400 people; 650 participants made direct presentations to the Panel. The Panel also received 20 154 email submissions from individuals and non-governmental organizations (NGOs), the majority of which were critical of the Project, citing First Nations rights, climate change, other environmental impacts and the need to transition to renewable energy. The minister of Natural Resources received a summary report from the Panel on November 1, 2016, that was made public.

At the same time, on behalf of the Panel, NRCan designed and managed an online questionnaire and portal to solicit public input on the Project. The portal accepted public input from June 30 to September 30, 2016. A total of 35 258 responses were submitted and 27 616 people completed the questionnaire. A majority of respondents were in favour of the Project, citing the public interest and economic benefits for Canada. A summary report of the questionnaire was made public.

About 77% of questionnaire participants supported the Project, while 98% of those who sent emails opposed it. However, the majority of participants in the Panel meetings opposed the Project. In making its decision on reconsidering the Project, the Government considered the Panel’s report, previous and current public input, including through engagement on the Project by Cabinet ministers and the Prime Minister.

NEB reconsideration hearing

As per GIC direction, on October 12, 2018, the NEB commenced its hearing into the reconsideration of the Project. The hearing took place over 22 weeks, and included participation from 118 intervenors, including 52 Indigenous groups and 8 federal government departments. To support intervenors, the NEB provided $4,981,760 in participant funding to 69 recipients, of which 82% was offered to Indigenous intervenors. The NEB also held 25 individual Oral Traditional Evidence sessions in Calgary, Victoria and Nanaimo. Between September 26 and October 3, 2018, the Board held a process through which individuals and groups could apply or register to participate in the MH-052-2018 hearing. Individuals who were not granted intervenor status, as well as any other member of the public, were able to file a letter of comment on the hearing record by November 20, 2018.

On December 6, 2018, in Order in Council P.C. 2018-1520, the Government appointed Mr. John A. Clarkson of Sooke, British Columbia, as a Marine Technical Advisor (Advisor) to the Board. Mr. Clarkson has been appointed pursuant to section 10 of the National Energy Board Act to assist the Board in an advisory capacity. All advice provided to the Board appeared on the public record and is included in the Reconsideration Report.

Participation by government departments

Concerns raised by participants in the reconsideration hearing

Participants in the reconsideration hearing raised concerns, including the risk of a potential spill from tankers, human health effects of a spill, impact of Project-related marine shipping and a potential spill on the recovery of species at risk, and marine liability, procedural matters, including the limited timeline and scope for the hearing, reliance on the previous initial hearing record, and the spatial marine limit of the designated project. A complete list of issues for the reconsideration hearing is found in Appendix 1 of the Reconsideration Report. A summary of Indigenous concerns and applicant, government, and NEB responses is found in Appendix 14 of the Reconsideration Report. The Board acknowledged the concerns raised by participants in regard to fish and fish habitat and, more specifically, Pacific salmon (i.e. Chinook, Coho, Pink, Sockeye, and Chum). The Board is of the view that the construction activities associated with the expansion of the Westridge Marine Terminal are expected to result in the loss and alteration of marine fish habitat and some mortality or injury to marine fish. However, the Board is of the view that measures proposed by Trans Mountain are appropriate and would effectively reduce the extent of effects on fish and fish habitat in both marine and freshwater systems.

NEB Reconsideration Report

The NEB’s Reconsideration Report for the Project was released on February 22, 2019. Overall, the NEB determined that the Project is in the Canadian public interest and recommended the issuance of a Certificate of Public Convenience and Necessity, subject to 156 conditions imposed on the proponent. This compares to 157 conditions in the 2016 Report, as one of the conditions — Condition 131 on the Marine Public Outreach Program — was changed into a recommendation. The NEB issued 16 recommendations to the GIC, which include measures to mitigate (for the purposes of the CEAA, 2012) and avoid or lessen (for the purposes of subsection 79(2) of SARA) the effects of Project-related marine shipping that are within the authority of the GIC but beyond the scope of the NEB’s regulatory authority and the proponent’s control. The recommendations are broad measures proposed to mitigate, avoid or lessen the effects of Project-related and cumulative marine shipping on the environment and the broader health of the Salish Sea. These objectives support mandate commitments of the Government of Canada (e.g. protecting the environment), reiterate solutions to issues the Government of Canada has heard through on-the-ground consultations with Indigenous peoples, and closely align with the intent of existing measures and recently approved accommodations.

NEB recommendations to the Governor in Council
Recommendation 1: Cumulative effects management plan for the Salish Sea

The NEB recommended that a regional cumulative effects management plan be developed which not only assesses the overall health and cumulative effects of Salish Sea ecosystems, but includes a long-term strategy for addressing cumulative impacts on these ecosystems in consultation with Indigenous peoples, British Columbia and relevant stakeholders. The NEB also recommended the Government consider whether a regional study, under the CEAA, 2012, conducted as part of the cumulative effects management plan, would be advantageous, and to include this consideration in public reporting for the cumulative effects management plan. While the NEB has stated that the contribution of Project-related marine shipping to the total cumulative effects is relatively small, this recommendation seeks to address some of the concerns expressed by Indigenous groups about the current and future cumulative effects of development on the Salish Sea.

The Government of Canada supports this recommendation. Indigenous groups have expressed concerns related to cumulative effects in the Salish Sea. Work has commenced on key initiatives that will contribute to the cumulative effects management plan. This work will be further informed through the Salish Sea Initiative, which is co-developed with Indigenous groups. Several existing federal measures contribute to the assessment and management of cumulative effects in the Salish Sea, including initiatives under the OPP (Cumulative Effects of Marine Shipping Initiative; Coastal Environmental Baseline Program); the cumulative effects approach under the proposed impact assessment system, which includes the Open Science and Data Platform (improves access to data and facilitates analysis); and Marine Spatial Planning, which will contribute to data collection and evaluation and will include Indigenous and stakeholder engagement.

Recommendation 2: Reporting on the health of the Salish Sea

The NEB recommended annual public reporting on all initiatives and measures to address cumulative effects on and in support of the Salish Sea’s health, including relevant initiatives undertaken by others, such as the Vancouver Fraser Port Authority’s Enhancing Cetacean Habitat and Observation (ECHO) Program.

The Government of Canada supports reporting to effectively communicate the status of federal initiatives and measures to address cumulative effects in the Salish Sea. An assessment of current reporting gaps will be conducted to inform appropriate levels of reporting. This work will be aligned with key corresponding initiatives, notably the Salish Sea Initiative and Marine Spatial Planning for the Salish Sea. In addition, the Open Science and Data Platform (OSDP), which is being developed as part of the cumulative effects approach under the proposed impact assessment system, will provide an online, user-friendly interface for accessing data and science products related to cumulative effects.

Recommendation 3: Marine bird monitoring program

The NEB recommended that the GIC develop and implement a marine bird monitoring and protection program to improve the understanding of the impacts on marine birds from ships in the Salish Sea and to inform adaptive management to reduce impacts. It recommended that this should be developed and implemented in partnership with marine shippers and local Indigenous communities.

The Government of Canada supports this recommendation. It aligns with the Oceans Protection Plan (OPP) and responsibilities under the Migratory Birds Convention Act, 1994 for the monitoring and protection of migratory birds. ECCC conducts some monitoring of migratory birds in the Salish Sea under its authorities under the Convention for the Protection of Migratory Birds in the United States and Canada, the Migratory Birds Convention Act, 1994 and SARA.

Recommendation 4: Expedite the feasibility study and, if feasible, establish a southern Strait of Georgia national marine conservation area

In 2003, the Government of Canada and the Province of British Columbia signed a Memorandum of Understanding (MOU) committing to assess the feasibility of a national marine conservation area reserve (NMCAR) in the southern Strait of Georgia. Parks Canada launched the feasibility assessment in 2004. It included dialogue with Indigenous organizations and consultations with key stakeholders, as well as technical studies analyzing ecological, cultural and socio-economic information, leading to the 2011 Canada/British Columbia announcement of a proposed boundary for consultation. The NEB recommended to expedite and publicly report on the feasibility study, and if deemed feasible, proceed to establish it.

The feasibility assessment for establishing a national marine conservation area reserve in the southern Strait of Georgia is proceeding in a timely manner. Acceleration of the feasibility assessment is possible if Indigenous organizations and other stakeholders are equally willing to expedite the process and if respectful and fulsome consultations with Indigenous organizations can occur in an expedited fashion.

Recommendation 5: Develop an offset program for increased underwater noise and increased strike risk

The NEB recommended that the Government implement an offset program to offset the impacts of underwater noise and vessel strike risks as a result of Project-related marine shipping. The recommendation specifies that measures be implemented at each relevant section of the marine shipping route at relevant times of the year. The NEB recommended that there be public periodic reporting that includes the extent over time to which that additional underwater noise and strike risk has been offset by the measures. The NEB recommended that the monitoring and modelling used to support the program be included in public reporting.

The Government is committed to the protection of at-risk species, including the Southern Resident Killer Whale (SRKW) off the coast of western Canada.

Measures have been and are being taken to avoid or lessen the adverse effects of Project-related marine shipping, including with respect to Project-related vessel noise and strikes, on species at risk and their critical habitat, including SRKW and their critical habitat, and those measures will be assessed, monitored and adaptively managed in a manner consistent with the relevant recovery strategies and action plans.

The impacts of the proposed Project represent a small proportion of the cumulative effects that are affecting the SRKW. The Government is currently implementing multiple initiatives in a comprehensive plan of action to address the threats to the SRKW and its critical habitat. These initiatives are intended to reduce cumulative effects on the whales and are designed to more than offset the impacts of Project-related traffic including vessel noise and strikes.

Through the $1.5 billion OPP, the $167 million Whales Initiative, and $61.5 million in additional measures for SRKW, the Government’s aim is to reduce key threats to the species (physical and acoustic disturbance, prey availability, and contaminants). Current measures include the voluntary slowdown in Haro Strait, fishery closure areas, a reduction in salmon fishing quotas, and actions to address contaminants. The Government of Canada will continue to build upon existing investments to address the impacts of the Project, and additional measures will be developed and introduced as new information and results become available. Since the NEB released its report, Canada has announced additional measures, including the actions it will take as accommodation measures in response to Indigenous concerns and to implement the NEB’s recommendations related to the Salish Sea.

The Government intends to address data gaps with respect to vessel noise and strike risk for at-risk species and conduct studies to determine the effectiveness of current and planned measures for the SRKW at addressing risks to other species. This assessment will help to better understand these risks and inform a decision on the need for additional measures.

The Government will engage with the maritime shipping industry and with committed shippers for offshore markets on the Project to deploy best available economic technology and practices to minimize underwater noise from Project-related shipping.

Recommendation 6: Consider specific measures related to Recommendation 5 and report on their potential feasibility and likely effectiveness

The Government of Canada supports this recommendation and will consider the specific measures identified by the National Energy Board as it relates to the reduction of underwater noise and vessel strikes as part of existing or planned programming being developed under the OPP, the Whales Initiative and additional measures for the SRKW, as well as the new Quiet Vessels Initiative. The Government will report to Canadians on the feasibility and likely effectiveness of this work.

Recommendation 7: Federal marine shipping oil spill response requirements

The NEB recommended that the Government review and update federal marine oil spill response requirements and lists eight specific elements for consideration.

The Government of Canada supports the NEB recommendation to review and update federal marine shipping oil spill requirements. Most of the elements included in the recommendation are already being addressed through the Oceans Protection Plan and through new accommodation measures provided to Indigenous communities in the Project area to more actively involve them and local communities in oil spill preparedness and response.

These measures will improve Canada’s preparedness for marine oil spills by toughening the requirements for oil spill response organizations and enhancing planning for oil spills through the inclusion of Indigenous groups.

Recommendation 8: Framework for mandatory enhanced tug escort in the Salish Sea

The NEB recommended that the GIC should develop a regulatory framework for making enhanced tug escort mandatory in the Salish Sea for Project-related tankers. The framework should include oversight and enforcement mechanisms. Mandatory enhanced tug escort should also be considered for other vessels as appropriate.

The Government of Canada supports the recommendation with respect to mandatory tug escorts for Project-related tankers. NEB Conditions 133 and 144 outline the detailed requirements for tug escorts in the Salish Sea for Project-related tankers, which are well in excess of the normal regulatory requirements for tankers. Transport Canada will work with the NEB to develop a regulatory approach to ensure oversight and enforcement of the mandatory tug escort for Project-related tankers.

Under the OPP, the Government of Canada has invested in multiple initiatives to ensure world-leading marine safety, including prevention initiatives such as improved navigational aids, pilotage reform, and increased Coast Guard response capacity. The Government of Canada has also considered the extension of enhanced tug escort for other vessels and has determined that such a measure is not warranted at this time. Such a measure is inconsistent with the marine safety approach taken by Canada and other leading marine safety jurisdictions, and it is inconsistent with the advice of the NEB Marine Technical Advisor. Moreover, such a measure would increase tug traffic in the Salish Sea, which would have negative environmental consequences, including increased GHG emissions and increased levels of underwater noise, which is a key threat to the recovery of the SRKW.

Recommendation 9: Consider a Canada/United States transboundary vessel traffic risk assessment

The NEB recommended that the Government consider, in conjunction with relevant United States regulatory authorities, the need for a Canada/United States transboundary vessel traffic risk assessment.

The Government of Canada supports the recommendation to consider the need for a Canada/United States transboundary vessel traffic risk assessment. The recommendation aligns with Government of Canada programs and policies, as there has been and continues to be ongoing work with U.S. partners with respect to marine safety.

As there are existing programs in place that can be leveraged to achieve target outcomes, the Government of Canada will undertake a preliminary analysis regarding the need for a transboundary vessel traffic risk assessment.

Recommendation 10: Develop greenhouse gas reduction measures for marine shipping

The NEB recommended that the Government actively support greenhouse gas reduction measures related to marine shipping that would align with the “final” International Maritime Organization Strategy by year 2023. The NEB suggested that this could include facilitating the use of low-carbon alternate fuels (e.g. liquefied natural gas [LNG]), using energy-efficient technologies and by providing economic incentives for the development and use of energy-efficient technologies. The recommendation asks the Government to develop related measures and monitor resulting greenhouse gas reductions.

The Government of Canada supports this recommendation; Canada is already well positioned to continue to address international marine shipping GHG emissions.

The recommendation aligns with Government of Canada existing programs and policies, including the Pan-Canadian Framework on Clean Growth and Climate Change (PCF), and Transport Canada’s core mandate to ensure a safe and secure, efficient and environmentally responsible transportation system. Canada is an active participant in discussions on GHG emissions reductions at the International Maritime Organization, and supports the implementation of the Initial IMO Strategy on reduction of greenhouse gas emissions from ships. A revised strategy is planned for 2023. Canada is also well positioned to continue advancing work to address international marine shipping GHG emissions with international partners.

The Government will engage with the maritime shipping industry and with committed shippers for offshore markets on the Project to deploy best available economic technology to support the reduction of underwater noise and decreased greenhouse gas emissions from the marine shipping associated with the Project.

Recommendation 11: Indigenous Advisory and Monitoring Committee engagement on marine safety system and relevant Canadian Coast Guard programs

The NEB recommended that Transport Canada and the Canadian Coast Guard engage with the Indigenous Advisory and Monitoring Committee (IAMC) on the marine safety system and identify opportunities to engage on Project-related marine shipping activities that intersect with Canadian Coast Guard operational programs.

The Government of Canada supports the recommendation that Transport Canada and the Coast Guard engage with the IAMC on the marine safety system and identify opportunities to engage on Project-related marine shipping activities. The recommendation provides a strong opportunity to build on Indigenous engagement and partnerships that have already been established.

The Government of Canada will leverage the Indigenous Advisory and Monitoring Committee (IAMC) to build on Indigenous engagement and partnerships that have already been established since August 2017. The structure and relationships support effective implementation, such as the Marine Shipping Subcommittee, which is advancing shared interests in safety, environmental protection, and recognition and implementation of Indigenous rights. Engagement on marine safety and Coast Guard operational programs could include the IAMC among other relevant stakeholders, as conversations about marine safety will grow beyond Project-related marine shipping only.

Creating permanent and long-term working relationships with Indigenous partners, and capacity within those communities to participate in aspects of marine safety, will ensure a more robust marine safety regime in the long term and benefit coastal Indigenous communities as well as all Canadians.

Recommendation 12: Engagement and awareness to prevent marine collisions

The NEB recommended that the Government of Canada continue targeted engagement with small vessel operators on safe navigation practices and preventing collisions with larger vessels. The recommendation requests that the Government incorporate the proponent’s work for Project-related tankers in this matter, as this recommendation was formerly a condition on the proponent from the project’s approval in 2016.

The Government of Canada agrees with the recommendation to continue engagement and awareness activities targeting recreational boaters. The Government of Canada will modernize the boating safety program in response to this recommendation and expand the mandate of Transport Canada’s Office of Boating Safety to focus on fishing vessel operators, and operators of small commercial vessels (such as small tugs and small passenger vessels), as well as with Indigenous coastal and near-coastal communities. The Government will also increase the use of third parties to increase awareness of marine safety.

Advancing the knowledge of boating safety and safe navigation practices will help prevent collisions with larger vessels and support regulatory compliance. The Government will collaborate with a number of coastal Indigenous groups on activities to increase boating safety awareness in their communities.

Recommendation 13: Enhanced Maritime Situational Awareness and Automatic Identification System

The NEB recommended that the Government accelerate the implementation of the Enhanced Maritime Situational Awareness (EMSA) initiative, an OPP initiative that will see the development of a user-friendly, web-based system that increases access to maritime information, and secondly, extend the Automatic Identification System (AIS), a system to identify and track vessels operating in Canadian waters, to smaller passenger vessels.

The Government of Canada supports this recommendation and is responding by accelerating the development and implementation of the EMSA initiative, which aims to develop a user-friendly, web-based system that increases access to maritime information, and secondly, by extending the AIS, a system to identify and track vessels operating in Canadian waters, to smaller passenger vessels.

Recommendation 14: New oil recovery technologies

The NEB recommended that the Government of Canada should incent the development and deployment of oil spill recovery technologies to ensure cutting-edge solutions are available in the event of a spill into marine and inland water environments.

The Government of Canada, through its Ocean Protection Plan, has made a significant investment in protecting coasts and waterways. This investment has focused on harnessing the best-in-class technologies for oil spill response. The $45.5M Multi-Partner Oil Spill Research Initiative is improving oil spill science and technology analysis capacity for response to marine spills. The Alternative Response Measures under the OPP are focusing on addressing barriers, such as legislation and building capacity, to harness the best available oil recovery technologies to address spills in marine environments.

Looking forward, the Government is strengthening this commitment through the development of a new Challenge component to support the development of new oil spill recovery technologies. The Challenge will be designed and structured to incentivize participation of innovators and key stakeholders such as spill responders, indigenous groups, and industry to rapidly develop technologies in this highly regulated and niche market space.

Recommendation 15: Review federal marine oil spill compensation regime

The NEB recommended that the federal marine oil spill compensation regime be reviewed to possibly include compensation for non-use value for a broad base of potential claimants.

The Government of Canada supports this recommendation. Canada has a robust liability and compensation regime to ensure the losses and damage suffered by responders and victims of ship-source oil spills are adequately and effectively compensated. At the same time, the Government of Canada is attentive to concerns expressed regarding how the regime might respond to the wider impacts marine oil spills may have on individuals and communities.

In 2018, Canada’s compensation regime was further strengthened through a number of significant improvements, including measures to provide unlimited compensation through the Ship-source Oil Pollution Fund (SOPF) so that all Canadian victims and responders can receive 100% compensation for eligible claims as well as new fast-track claim processes to ensure funds quickly get to those who need it. In addition, the SOPF has clarified its approach to implementing the Marine Liability Act and confirmed the important coverage Canada’s domestic compensation regime can provide for losses of particular importance to Indigenous communities, including fish for ceremonial purposes. The Government also notes that the SOPF intends to consult in the coming months on the process for filing fishery-related claims.

Looking ahead, the Government will further assess the scope of losses, including non-use values, that could be addressed by Canada’s liability and compensation regime for marine oil spills, consistent with NEB Recommendation 15.

Recommendation 16: Develop a formal complaint resolution program with Vancouver Fraser Port Authority

The NEB recommended that the Government work with the Vancouver Fraser Port Authority to develop a formal complaint resolution process for anchorages.

The Government of Canada supports the NEB’s recommendation and recognizes the concerns expressed by Indigenous communities pertaining to anchorages. The Government of Canada notes that the VFPA has established a process for managing complaints regarding activities within the port’s jurisdiction, including with respect to anchorages.

Looking beyond the scope of the recommendation, and in response to concerns expressed by Indigenous and coastal communities, Transport Canada implemented an Interim Protocol for the use of Southern British Columbia Anchorages. Launched on February 8, 2018, the protocol includes a number of changes to anchorage practices, including a more balanced use of sites, and the promotion of voluntary noise and lighting restrictions for anchored vessels. Furthermore, Transport Canada, as part of the OPP, launched a national Anchorages Initiative. As part of this initiative, Transport Canada will research and analyze the environmental, economic, social, safety and security impacts of anchorages. The Department will also examine the management of anchorages outside public ports. Transport Canada’s goal for the management of anchorages is to ensure commercial shipping is conducted safely for the benefit of all Canadians and managed efficiently, while seeking to minimize the impact to the marine environment and surrounding communities.

Amendments to NEB certificate conditions

In the Tsleil-Waututh Nation decision, the Court noted that when considering whether Canada has fulfilled its duty to consult, the GIC necessarily has the power to impose conditions on any certificate of public convenience and necessity it directs the NEB to issue. Consequently, the GIC has the power pursuant to section 35 of the Constitution Act to add or amend conditions in order to address impacts to section 35 Aboriginal or Treaty rights.

Following the guidance from the Court, the GIC is introducing amendments to some of the 156 certificate conditions recommended by the NEB to accommodate feedback from Indigenous groups collected during Phase III consultations and ongoing engagement with the Indigenous Advisory and Monitoring Committee. These include amendments to conditions to explicitly mandate a consultation plan for conditions that lack this requirement and introduce more transparency requirements on Trans Mountain:

Amendments to legacy pipeline certificates

On November 29, 2016, as part of the initial Project approval, Order in Council P.C. 2016-1069 approved amendments to Trans Mountain’s existing pipeline Certificates OC-2 and OC-49 required for the expansion project. A decision to re-approve the Project will require an Order in Council to approve the NEB recommendation to issue further amendments to the existing legacy certificates (from 1960 and 2006 respectively) in order to subject both certificates to the amended conditions reflected in the new certificate.

Conclusion

In reaching a decision on whether to approve the Project, a broad range of considerations are available to the GIC to consider and weigh, including the Project’s positive and negative impacts on Canada and on its strategic interests and objectives. Among these considerations, the Board’s conclusions and recommendations as to whether the Project is in the public interest and whether the significant adverse effects are justified in the circumstances are given careful consideration, as is the process of Crown consultation and accommodation of Indigenous groups during Phase III.

In making its decision on the Project, the Government has considered, among other things, the NEB’s initial consideration report, the assessment of upstream GHG emissions, the views of the public gathered through the Panel and an online questionnaire and enhanced consultations with Indigenous peoples, the Court’s decision, the NEB’s reconsideration report, the Crown Consultation and Accommodation Report, the NEB’s recommendations to the Government, certificate conditions and proponent commitments, accommodation measures and proposed condition amendments, the measures that have been taken and are being taken to mitigate the significant adverse environmental effects on the SRKW and to avoid or lessen the adverse effects of projected related marine shipping on listed species and their critical habitat, including the SRKW, Canada’s commitment to assess, monitor and report on the effectiveness of these measures and adaptively manage them and the public interest.

In considering this information, the Governor General in Council, on the recommendation of the Minister of Natural Resources:

Departmental contact

Tim Gardiner
Acting Director General
Petroleum Resources Branch
Natural Resources Canada
Telephone: 343‑292‑6165