Question Period Note: TRANS MOUNTAIN EXPANSION PROJECT

On December 16, 2019, a three-day hearing will start in the Federal Court of Appeal regarding the judicial review of the Governor-in-Council’s June 18, 2019, decision to approve the Trans Mountain Expansion Project.

• Major energy projects that cross provincial and territorial borders undergo a rigorous, multi-stage review process, including consultation with Indigenous groups potentially impacted by the project.
• Following the August 30, 2018, decision of the Federal Court of Appeal that set aside the initial federal approval of the TMX pipeline, the Government of Canada followed the guidance of the Court and undertook a comprehensive and rigorous consultation and accommodation process with potentially affected Indigenous communities. This consultation and accommodation process was overseen by former Supreme Court of Canada Justice Mr. Frank Iacobucci.
• On June 18, 2019, the project was approved by the Governor-in-Council subject to 156 legally binding conditions, including measures to accommodate impacts on asserted and established Indigenous rights.
• Applications for judicial review of this decision are currently before the Federal Court of Appeal. Canada will vigorously defend the approval of the TMX project.

On December 16, 2013, Trans Mountain Pipeline ULC (the proponent), a wholly owned subsidiary of Kinder Morgan, filed an application with the National Energy Board (NEB) to twin the existing Trans Mountain oil pipeline and expand the Westridge marine terminal (the TMX project). The existing pipeline, built in 1953, runs from Edmonton to the Westridge Marine Terminal in Burnaby, BC. The proposed expansion consists of 980 km of new pipeline that would be built between Edmonton and Burnaby, increasing the existing pipeline’s capacity by approximately three times (from 300,000 barrels/day (b/d) to 890,000 b/d) and increasing the number of marine tankers transiting Burrard Inlet by approximately seven times.

On November 29, 2016, the Governor in Council (GiC) approved the project. On December 1, 2016, the NEB issued a Certificate of Public Convenience and Necessity (CPCN) to the proponent authorizing the construction and operation of the project, subject to the conditions.

On August 30, 2018, the Federal Court of Appeal in Tsleil-Waututh Nation v. Canada (Attorney General) (2018 FCA 153) set aside the federal approval because, in the court’s view, the NEB unjustifiably excluded project-related marine shipping from the scope of the project reviewed under the Canadian Environmental Assessment Act, 2012 (CEAA 2012), and the consultations with Indigenous groups in Phase III did not adequately take into account the concerns of Indigenous groups or explore possible accommodation of those concerns.

On August 31, 2018, Canada acquired ownership of the entities that control the existing Trans Mountain pipeline and their related assets, including the TMX project.

On September 20, 2018, the GiC issued OIC P.C. 2018-1177, directing the NEB to conduct a Reconsideration taking into account the environmental effects of project-related marine shipping in view of the requirements of CEAA 2012, and the adverse effects of project-related marine shipping on species at risk in view of any requirements of section 79 of the Species at Risk Act (SARA). The OIC instructed the NEB to complete the Reconsideration within 155 days.

On October 3, 2018, Canada announced the re-initiation of consultations with Indigenous groups impacted by the TMX project. As part of this process, the Honourable Frank Iacobucci, former Supreme Court of Canada Justice, was appointed to provide oversight and direction to Canada on how to conduct meaningful Phase III consultations.

On February 22, 2019, the NEB released its Reconsideration Report on the project recommending that the project be approved with 156 conditions. It also made 16 new, non-binding recommendations to the GiC related to the environmental assessment of project-related marine shipping.

On April 18, 2019, the Minister of Natural Resources announced the GiC extended the timeline for a decision on the TMX project from May 22, 2019 to June 18, 2019. It did so in response to concerns raised by Indigenous groups during the Phase III consultations.

On June 18, 2019, following the completion of the re-initiated Phase III consultation and accommodation process, the GiC approved the TMX project subject to 156 binding conditions, 6 of which were amended by the GIC to further address impacts to asserted and established Aboriginal and Treaty Rights.

On July 8, 2019, 12 motions for leave to seek judicial review of the GIC’s decision to approve the TMX project were filed with the Federal Court of Appeal.

On September 4, 2019, the Federal Court of Appeal (FCA) dismissed leave to 6 of the 12 applications, and granted leave on a limited basis to the other 6 applications. The focus of the applications has been limited to the adequacy of the re-initiated consultation process.

The 6 applications that were granted leave to seek judicial review are Tsleil-Waututh Nation (TWN), Squamish Nation, Coldwater Indian Band, Upper Nicola Band, Stk’emlupsemc te Secwepemc (SSN), Stolo collective. Upper Nicola Band and SSN have since withdrawn from the litigation proceeding.

On November 4, 2019, 5 of the initial 12 applicants brought motions seeking leave to appeal the September 4, 2019 decision of the FCA to the Supreme Court of Canada (SCC). Typically, the SCC takes 3 to 4 months to decide whether or not to grant leave to appeal.

On December 16, 2019, the 3-day hearing of the consolidated applications is scheduled to begin in the FCA.

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