THIS IS EXHIBIT 661'' Referred to in the Affidavit of Vancouver,Bc V6E2E9

THIS IS EXHIBIT 661'' Referred to in the Affidavit of Michael Davies

Sworn before me this 26th day of October A.D.2017

SIONER FOR OATHS IN AND FOR BRITISH COLUMBIA

SHANNON DAVIDSON Barrister & Solicitor Osler, Hoskin & Harcourt LLP Suite 1700, Guinness Tower 1055 West Hasting Street Vancouver,Bc V6E2E9 Telephone: 604.692.27 54 Distance between 7585 Barnet Road and 7065 Bayview Drive October 26, 2017 1:5,368

Length: 247.08 m

The information has been gathered and assembled on the City of Burnaby's computer systems. Data provided herein is derived from a a number of sources with varying levels of accuracy. The City of Burnaby disclaims all responsibility for the accuracy or completeness of information contained herein. ¯ THIS IS EXHIBIT "2') Referred to in the Affidavit of Michael Davies

Sworn before me this 26th dayof October A.D.2017

CO ONER FOR OATHS IN AND FOR BRITISH COLUMBIA

SHANNON DAVIDSON Barrister & Solicitor Osler, Hoskin & Harcourt LLP Suite 1700, Guinness Tower 1055 V/est Hasting Street Vancouver,Bc Y6E2E9 Telephone: 604.692.27 54 Burnaby (City) v. Trans Mountain Pipeline ULC, 2014 BCSC 1820, 2014 CarswellBC 2857 2014 BCSC 1820, 2014 CarswellBC 2857, [2014] B.C.W.L.D. 7422...

2014 BCSC 1820 British Columbia Supreme Court

Burnaby (City) v. Trans Mountain Pipeline ULC

2014 CarswellBC 2857, 2014 BCSC 1820, [2014] B.C.W.L.D. 7422, [2014] B.C.W.L.D. 7499, 245 A.C.W.S. (3d) 190, 27 M.P.L.R. (5th) 337, 67 B.C.L.R. (5th) 345

City of Burnaby, Applicant and Trans Mountain Pipeline ULC, Respondent and National Energy Board, Respondent

B.J. Brown J.

Heard: September 11, 2014 Judgment: September 17, 2014 * Docket: Vancouver S146911

Counsel: G.J. McDade, Q.C., M. Bradley, for Applicant, City of Burnaby W. Kaplan, Q.C., M. Killoran, Q.C., M.P. Good, for Respondent, Trans Mountain Pipeline ULC P. Johnston, for National Energy Board

Subject: Civil Practice and Procedure; Environmental; Public; Property; Municipal

Headnote Remedies --- Injunctions — Availability of injunctions — Injunctions in specific contexts — Enforcement of by-laws and statutes City sought to prevent pipeline company from cutting down trees or damaging vegetation, transporting heavy machinery or drilling, and constructing and clearing area for helicopter pad or staging area within conservation area — City brought application for injunction pursuant to s. 274 of Community Charter prohibiting company from continuing works in contravention of by-laws — Application dismissed — It was not appropriate to issue injunction sought — Matter was properly before National Energy Board (NEB) — City had ability to pursue relief that it sought in that proceeding, and had done so — City would have ability to appeal NEB conclusions to Federal Court, and could seek injunction or stay in that court — Despite its argument to contrary on basis that it was seeking statutory injunction, city had to meet requirements for equitable injunction, being three-part test — Matter was not one of private entity offending by-laws but, rather, true dispute was between competing public interests — As to first stage of three-part test, it was doubtful that there was serious question to be tried because there was another forum in which matter could be determined, and city had already engaged that forum and could raise question before that forum.

Environmental law --- Statutory protection of environment — Approvals, licences and orders — Remedies City sought to prevent pipeline company from cutting down trees or damaging vegetation, transporting heavy machinery or drilling, and constructing and clearing area for helicopter pad or staging area within conservation area — City brought application for injunction pursuant to s. 274 of Community Charter prohibiting company from continuing works in contravention of by-laws — Application dismissed — It was not appropriate to issue injunction sought — Matter was properly before National Energy Board (NEB) — City had ability to pursue relief that it sought in that proceeding, and had done so — City would have ability to appeal NEB conclusions to Federal Court, and could seek injunction or stay in that court — Despite its argument to contrary on basis that it was seeking statutory injunction, city had to meet requirements for equitable injunction, being three-part test — Matter was not one of private entity offending by-laws but, rather, true dispute was between competing public interests — As to

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first stage of three-part test, it was doubtful that there was serious question to be tried because there was another forum in which matter could be determined, and city had already engaged that forum and could raise question before that forum.

Table of Authorities Cases considered by B.J. Brown J.:

Canadian Natural Resources Ltd. v. Calgary (City) (2010), 81 M.P.L.R. (4th) 177, 42 Alta. L.R. (5th) 66, (sub nom. Calgary (City) v. Canadian Natural Resources Ltd.) 496 A.R. 162, 2010 ABQB 417, 2010 CarswellAlta 2394 (Alta. Q.B.) — referred to

Cuddy Chicks Ltd. v. Ontario (Labour Relations Board) (1991), 91 C.L.L.C. 14,024, 3 O.R. (3d) 128 (note), 50 Admin. L.R. 44, 122 N.R. 361, 81 D.L.R. (4th) 121, [1991] O.L.R.B. Rep. 790, 47 O.A.C. 271, 4 C.R.R. (2d) 1, [1991] 2 S.C.R. 5, 3 O.R. (3d) 128, 1991 CarswellOnt 976, 1991 CarswellOnt 3004 (S.C.C.) — considered

Martin v. Nova Scotia (Workers' Compensation Board) (2003), 2003 CarswellNS 360, 2003 CarswellNS 361, 2003 SCC 54, (sub nom. Workers' Compensation Board (N.S.) v. Martin) 217 N.S.R. (2d) 301, (sub nom. Workers' Compensation Board (N.S.) v. Martin) 683 A.P.R. 301, 310 N.R. 22, (sub nom. Nova Scotia (Workers' Compensation Board) v. Martin) [2003] 2 S.C.R. 504, 110 C.R.R. (2d) 233, 2003 CSC 54, (sub nom. Nova Scotia (Workers' Compensation Board) v. Martin) 231 D.L.R. (4th) 385, 28 C.C.E.L. (3d) 1, 4 Admin. L.R. (4th) 1 (S.C.C.) — referred to

Paul v. British Columbia (Forest Appeals Commission) (2003), 2003 CarswellBC 2432, 2003 CarswellBC 2433, 2003 SCC 55, 5 Admin. L.R. (4th) 161, 111 C.R.R. (2d) 292, 18 B.C.L.R. (4th) 207, [2003] 2 S.C.R. 585, 231 D.L.R. (4th) 449, [2003] 11 W.W.R. 1, [2003] 4 C.N.L.R. 25, 3 C.E.L.R. (3d) 161 (S.C.C.) — referred to

RJR-MacDonald Inc. v. Canada (Attorney General) (1994), [1994] 1 S.C.R. 311, 1994 CarswellQue 120F, 1994 CarswellQue 120, 54 C.P.R. (3d) 114, (sub nom. RJR-MacDonald Inc. c. Canada (Procureur général)) 164 N.R. 1, (sub nom. RJR-MacDonald Inc. c. Canada (Procureur général)) 60 Q.A.C. 241, 111 D.L.R. (4th) 385 (S.C.C.) — followed

Vancouver (City) v. O'Flynn-Magee (2011), 2011 BCSC 1647, 2011 CarswellBC 3205, [2012] 3 W.W.R. 575, 91 M.P.L.R. (4th) 197, 26 B.C.L.R. (5th) 155, 342 D.L.R. (4th) 190, 15 C.P.C. (7th) 370 (B.C. S.C.) — considered

Statutes considered:

Community Charter, S.B.C. 2003, c. 26 s. 274 — pursuant to

National Energy Board Act, R.S.C. 1985, c. N-7 Generally — referred to

s. 11 — considered

s. 12 — considered

s. 13 — considered

s. 73 — considered

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s. 73(a) — considered

s. 75 — considered

APPLICATION by city for injunction to prevent pipeline company from continuing to carry on works in contravention of by-laws.

B.J. Brown J.:

Introduction

1 On September 17, 2014, I gave the parties my decision in these matters, with reasons to follow. These are those reasons.

2 The City of Burnaby ("Burnaby") seeks an injunction pursuant to s. 274 of the Community Charter, S.B.C. 2003, c. 26 prohibiting Trans Mountain Pipeline ULC, its agents or employees (together "Trans Mountain") from continuing to carry on works in the City of Burnaby in contravention of the City of Burnaby bylaws, including the City of Burnaby, by-law No. 7331, Burnaby Parks Regulations Bylaw 1979 ("Burnaby Parks Regulation") and the City of Burnaby, by-law No.4299, Burnaby Street and Traffic Bylaw 1961 ("Burnaby Street and Traffic Bylaw"). Specifically, Burnaby seeks an injunction to prevent Trans Mountain from cutting down trees or damaging vegetation within the Burnaby Mountain Conservation Area; from transporting heavy machinery or drilling within the Burnaby Mountain Conservation Area; and from constructing, clearing an area for a helicopter landing pad or staging area within the Burnaby Mountain Conservation Area.

The Position of the Applicant

3 Burnaby argues that because this is an application for a statutory injunction, it does not need to meet the normal three-stage test for an interlocutory injunction as set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (S.C.C.). Rather, it argues that the irreparable harm and balance of convenience aspects of the normal interlocutory injunction test are pre-emptively satisfied so that the municipality need only prove a breach of the statute in order to be entitled to an injunction, unless there are exceptional circumstances.

4 Burnaby argues that its bylaws are presumptively valid unless a constitutional determination of inapplicability is made. It says that as of yet there is no constitutional issue raised by the defendants. It says that were the defendants to raise a constitutional issue, this would need to be determined by this court in due course. Otherwise, it says it is entitled to a permanent injunction.

5 It argues that an interim injunction in this matter is necessary as the continued activities of Trans Mountain would constitute irreparable harm and the balance of convenience favours the public interest in protecting the Burnaby Mountain Conservation Area until trial. It says that the status quo is that Burnaby's bylaws are in force and that the conservation area, only partially damaged at this point in time, should be maintained intact until the constitutional issue is determined, should the defendants raise one.

6 It argues that Trans Mountain has clearly breached Burnaby's bylaws and has stated its intention to continue to do so.

7 Burnaby argues that the balance of convenience favours maintaining the status quo for a number of reasons, including:

• the Burnaby Mountain Conservation Area is an important public resource;

• the public has an interest in the enforcement of bylaws

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• the National Energy Board (the "NEB") can extend the time for Trans Mountain to submit the required studies, once this court has determined the constitutionality of Burnaby's bylaws;

• there is urgency due to Trans Mountain's unilateral choice to change the route of its proposed pipeline;

• the route through Burnaby Mountain is not necessary for the NEB to proceed with the project as Trans Mountain can proceed with its original plans; and

• Trans Mountain's pipeline has not been approved and the NEB has not yet decided that approval would be in the national or public interest.

The Position of the Respondent

8 Trans Mountain argues that the proper test to determine whether an injunction is appropriate in the circumstances is the three part test in RJR-MacDonald Inc. that assesses whether there is a serious question to be tried, whether the applicant will suffer irreparable harm if the application is refused, and which party will suffer greater harm from the granting or refusal of the remedy pending a decision on the merits: RJR-MacDonald Inc. at 334, 349-354.

9 Trans Mountain says that, in this case, there are two competing public interests, that is, the national public interest as represented by the NEB and the local public interest as represented by Burnaby. It says that it is not breaching the law in conducting the field studies required by the NEB because the National Energy Board Act, R.S.C. 1985, c. N-7 (the "Act") gives Trans Mountain the right to conduct those studies. It says, accordingly, no statutory injunction can be issued and if Burnaby is to succeed it must do so according to the RJR-MacDonald Inc. standard.

10 Trans Mountain argues that there is no serious question to be tried because Burnaby is attempting to use its bylaw enforcement power to achieve indirectly what it is unable to achieve directly by participation in the NEB process. Trans Mountain says that the NEB has jurisdiction to deal with the issues raised by this application as set out in s. 73 of the Act. The NEB has jurisdiction to determine constitutional issues that are relevant to the exercise of its authority. Trans Mountain says that the NEB has the exclusive jurisdiction to consider matters related to a variety of issues, including inter-Provincial pipelines. If the investigations required by the NEB are found to infringe Burnaby's bylaws, the NEB has the jurisdiction to inquire into that issue, decide, and treat the bylaws as invalid if it determines that the s. 73 right overrides the bylaw. That decision will be subject to appeal to the Federal Court.

11 Trans Mountain argues that the application before me constitutes a collateral attack on the decisions of the NEB.

12 With respect to irreparable harm and balance of convenience, Trans Mountain argues that Burnaby cannot show irreparable harm. Indeed, it is Trans Mountain that will suffer irreparable harm and the balance of convenience favours rejecting the injunction.

13 Trans Mountain says that the Act contemplates some waste when a party such as Trans Mountain enters into property of the Crown or a private entity to conduct necessary studies. The Act requires that that harm be minimized and also requires that it be remediated. Trans Mountain says that it has removed six diseased trees and two dead trees. It proposes to remove one further tree. It says that the area is fully capable of remediation and, indeed, improvement. It says that it has authority pursuant to ss. 73(a) and 75 of the Act to enter into lands and to commit limited waste to the extent necessary for surveying activities, which would include tree removal and brush clearing. At the same time, it has a statutory obligation to compensate and remediate any impacts.

14 By contrast, Trans Mountain says that it will suffer harm far exceeding that of Burnaby and the harm will include irreparable harm. It says that for every month the project is delayed it will incur direct costs of $5,643,000. It says that because of the seasonality of the critical construction window, if the matter is delayed six months, it will effectively translate into a one year delay. The extended delay may jeopardize the preferred corridor which would result in irreparable harm to Trans Mountain and to third parties including the Province of British Columbia. It says that

Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 4 Burnaby (City) v. Trans Mountain Pipeline ULC, 2014 BCSC 1820, 2014 CarswellBC 2857 2014 BCSC 1820, 2014 CarswellBC 2857, [2014] B.C.W.L.D. 7422... the project is expected to generate $586,600,000 in Provincial Government revenue, over half of which would accrue to British Columbia, and that if the project does not proceed, those benefits will be lost.

15 Finally, Trans Mountain says that it has agreed to halt work on the Burnaby lands pending determination of its s. 73 application by the NEB. It says that its submissions are due on September 15, 2014 and that the NEB will then rule on the issue. It says that at this time there is no risk of any impact to the Burnaby lands because work is stopped. If the NEB issues an order, Burnaby is entitled to appeal that order and pursue a stay or otherwise seek an injunction in the appropriate forum, which is the Federal Court.

Analysis and Conclusions

16 In my view, it is not appropriate to issue the injunction sought by Burnaby. The matter is properly before the NEB. Burnaby has the ability to pursue the relief that it seeks in that proceeding and, indeed, has done so. In the event that the NEB reaches conclusions that Burnaby considers to be in error, Burnaby may pursue an appeal to the Federal Court and may seek an injunction or a stay at that Court. Accordingly, this Court need not grant an injunction.

17 By way of background, as most of the public in British Columbia will be aware, Trans Mountain has applied to expand its existing pipeline running through Burnaby. On December 16, 2013, Trans Mountain applied to the NEB for permission to build and operate the project which includes a twinning or looping of the pipeline in Alberta and British Columbia with approximately 987 kilometers of new buried pipeline, new and modified facilities, and reactivation of 193 kilometers of existing pipeline. On April 2, 2014, the NEB issued a hearing order, OH-001-2014. This order included timelines and a process for the project hearing. It granted Burnaby intervener status.

18 Trans Mountain's project initially contemplated routing the pipeline under certain streets and avenues in Burnaby before turning to a marine terminal. That route was over its existing right-of-way and would use conventional pipeline construction techniques. As an alternative, the project application contemplated more direct alternatives, using partial or total trenchless drilling (tunneling).

19 At a series of open houses in the spring of 2014, members of the public indicated to Trans Mountain a preference for trenchless construction routing through Burnaby Mountain that would avoid traffic disruptions and neighbourhood impact.

20 As a result, Trans Mountain advised the NEB that its preferred method of construction would be the tunneling method through Burnaby Mountain. This was in response to stakeholder feedback. That route requires Trans Mountain to undertake studies and assessments to meet the NEB's requirements. These include:

(a) geotechnical investigations, including drilling four bore-holes at two sites;

(b) soil surveys;

(d) vegetation surveys;

(e) wildlife surveys;

(f) archeological surveys; and

(g) an update on the human occupancy and resource use element.

21 On July 15, 2014, the NEB issued Procedural Direction No. 4 that defined time limits within which Trans Mountain was to complete the studies necessary for the preferred corridor. Trans Mountain is to file studies and information on its preferred route by December 1, 2014. To meet that deadline, Trans Mountain must secure data from Burnaby Mountain.

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22 Trans Mountain says that since May 2012, it has engaged with Burnaby in an attempt to obtain cooperation for the mandated field studies. Trans Mountain says that it was not able to obtain Burnaby's cooperation to access the Burnaby Mountain lands.

23 Trans Mountain wrote to the NEB requesting confirmation of its interpretation of s. 73(a) of the Act. On August 5, 2014, Burnaby provided its written submissions and a Notice of Constitutional Question to the NEB. On August 19, 2014, the NEB issued a ruling that stated, in part:

A plain reading of the language used in paragraph 73(a) provides Trans Mountain with the power to enter any Crown (federal or provincial) or privately owned land which lies in the intended route of its pipeline to make surveys and examinations. There is no requirement in paragraph 73(a) for companies to reach agreement with land owners, the Crown, or otherwise, before exercising the right to access land. The provision does not restrict the powers conferred on companies to enter into and on lands that were part of an original application.

It continued:

The Board is of the view that a company's power under s. 73(a) to "make surveys, examinations or other necessary arrangements on the land for fixing the site of a pipeline" should not be read restrictively as long as what is done is necessary for fixing the routing of the pipeline and submitting necessary information to the Board. To interpret the survey power as Burnaby has submitted to allow only "superficial access" would not provide the board with the information it needs and would go against the intent of the legislation.

It concluded on the subject:

In summary, the Board is of the view that Trans Mountain has the power stated by Parliament in paragraph 73(a) of the NEB Act. Specifically, Trans Mountain has the power to enter into and on Burnaby land without Burnaby's agreement in the manner outlined in Trans Mountain's 25 July 2014 request.

24 On August 20, 2014, Trans Mountain wrote to Burnaby and advised that Trans Mountain intended to commence its mandated field studies on August 22. Burnaby responded that Trans Mountain's s. 73 rights were subject to compliance with Burnaby bylaws and that parks department staff had been instructed to take necessary actions to prevent any contraventions of the Burnaby bylaws.

25 Trans Mountain says that it identified trees for cutting on August 26, 2014. It says that, in total, it cut eight trees based on arborist's markings and nearby brush was also removed. It says that none of the trees removed were fully healthy and others were dead.

26 Shortly afterwards, Burnaby presented Trans Mountain with two orders to cease bylaw contravention pursuant to the Burnaby Street and Traffic Bylaw and the Burnaby Parks Regulation. Burnaby advised Trans Mountain that it would be prevented from doing any further geotechnical or brush clearing work on its lands.

27 On September 3, 2014, Trans Mountain filed a notice of motion with the NEB seeking an order directing Burnaby to comply with s. 73(a) of the Act. The NEB received the application and set a timetable for submissions. Burnaby's submission was due and was received on September 10, 2014. Trans Mountain's submissions were due September 15, 2014.

Which Injunction Test Applies?

28 Burnaby argues that it is seeking a statutory injunction and therefore should not be required to meet the traditional equitable injunction requirements as set out in RJR-MacDonald. In particular, it says that it should not be required to meet the irreparable harm or the balance of convenience requirements.

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29 I am not persuaded that this position is correct.

30 In Vancouver (City) v. O'Flynn-Magee, 2011 BCSC 1647 (B.C. S.C.), Associate Chief Justice MacKenzie said:

[27] There is a difference in principle and rationale between an equitable interlocutory injunction and one that is based upon statutory authority. The rationale for not requiring the equitable injunction test where the party seeking the injunction is a municipality, or other elected body, is that when elected officials enact by-laws or other legislation, they are deemed to do so in the public interest at large (Toronto v. Polai (1969), 8 D.L.R. (3d) 689 (Ont. C.A.) at p. 697).

[28] Therefore, the irreparable harm and balance of convenience factors are pre-emptively satisfied in ensuring complying with law that is in the public interest (Thompson-Nicola (Regional District) v. Galbraith, [1998] B.C.J. No. 1436 [at] para. 2). To the extent that the appellants may suffer hardship from the imposition and enforcement of an injunction, that will not outweigh the public interest in having the law obeyed [Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), M.P.L.R. (2d) 249 at para 9 (B.C.C.A.)].

31 Here, we are not dealing with a private entity offending bylaws. Rather, the true dispute is between competing public interests. The Act confers on the NEB certain jurisdiction. That includes the right to determine whether it is in the public interest that the pipeline project proceed and that includes permitting certain investigations. The NEB has the right under the Act to control that process.

32 Trans Mountain will conduct investigations as permitted by the NEB. As such, it is not flouting the law, rather, it is proceeding as directed by the NEB.

33 Accordingly, in my view, Burnaby must meet the requirements for an equitable injunction. That is, the standard RJR-MacDonald Inc. test.

34 That test is:

1. is there a serious question to be tried?

2. will there be irreparable harm?

3. does the balance of convenience favour the applicant?

(1) Is There a Serious Question to be Tried?

35 I have doubt in this case that there is a serious question to be tried because there is another forum in which the matter before me can be determined. Indeed, as I have set out above, Burnaby has already engaged that forum and can raise this very question before that forum.

36 I recognize that the threshold for meeting this element of the test is a low one. In RJR-MacDonald Inc. at 337-338, Sopinka and Cory JJ. for the Court provided that:

Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third test, even if — of the opinion that the plaintiff is unlikely to succeed at trial.

37 The NEB is given powers pursuant to its Act that include s. 11 that provides it is a court of record with all powers, rights and privileges as are vested in the Superior Court of Record. By s. 12 of the Act, it is given full and exclusive jurisdiction to inquire into, hear, and determine any matter, and has full jurisdiction to hear and determine all matters whether of law or fact.

38 By s. 13 of the Act, the NEB is given the power to make mandatory orders.

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39 The NEB has jurisdiction to determine the constitutional issues that are relevant to the exercise of its authority: Martin v. Nova Scotia (Workers' Compensation Board), 2003 SCC 54 (S.C.C.) at para. 28; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55 (S.C.C.) at para. 39; Canadian Natural Resources Ltd. v. Calgary (City), 2010 ABQB 417 (Alta. Q.B.) at paras. 80-86.

40 In Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 (S.C.C.), the Supreme Court of Canada said that, while an administrative tribunal cannot issue a formal declaration of invalidity (assuming, for example, that the NEB determined that the Burnaby bylaws were invalid in this context), which is a remedy exercisable only by the Superior Courts, the tribunal may treat any impugned provision as invalid for the purposes of the matter before it. Therefore, although it could not issue a declaration that s. 73 of the Act or the Burnaby bylaws were invalid, nonetheless, the NEB would be able to treat the impugned provision as invalid for the purposes of the matter before it.

41 However, even if I were satisfied that there was a serious question to be tried before this court, I am not satisfied that Burnaby has met the other requirements for an injunction.

(2) Will There Be Irreparable Harm?

42 The parties have filed conflicting evidence as to whether Burnaby will suffer irreparable harm through the activities undertaken by Trans Mountain. Burnaby says that Trans Mountain cleared an area of approximately half a hectare of vegetation and cut six live mature trees along with seven large wildlife trees. One-half a hectare is 5,000 square meters. Trans Mountain says that it cleared an area 20 meters by 20 meters (400 square meters). Trans Mountain says that the Burnaby Mountain Conservation Area is 67 hectares. By my calculation, that would be 134 times the area that Burnaby says Trans Mountain has cleared.

43 Burnaby relies on an opinion from its arborist that the forest environment has been irreparably fractured, causing significant effects including reduced water absorption, lower oxygen levels in the soil, and lack of shade with consequent die-back of the surrounding forest. The arborist concluded that the area in question has been irreparably damaged by the actions undertaken. The arborist says that the trees are irreplaceable and the planting of new trees will not attain the level of importance to the area for 60 to 100 years, if ever.

44 Trans Mountain relies on the opinions of its arborist and biologist that tree cover and ecosystems like the one under consideration will regenerate reasonably quickly and, without significant reclamation, could naturally regenerate within 20 to 40 years. It says there is still good ground cover in the area and it has not exposed soil, therefore, there is still significant opportunity for moisture retention by ferns and shrubs in the area. It says it has only altered one small patch by cutting the trees. It says that in the Burnaby Mountain Conservation Area there are many areas where the forest has tree canopy openings and ecological conditions similar to those in the disturbed area. It says that if no work is done the area will simply be similar to other open canopy areas in the Burnaby Mountain Conservation Area.

45 Trans Mountain says that the removal of the eight trees at bore-hole 1 was justified and approved by its arborist. It says six trees and two dead stumps were identified by the arborist for removal. The live trees removed were red alder. Wildlife trees are dead trees or trees that are close to dead and are used by wildlife for burrowing and other habitat functions. Trans Mountain says that, without a wildlife study, one cannot determine whether any of the dead trees that were removed were being used in such a manner.

46 Trans Mountain says that at bore-hole 2, its arborist only tagged one tree for removal. At that site, the tree canopy is quite open and there is no requirement for significant clearing. The tree tagged for removal was an alder that had fungal decay. There is no other removal work to be done with respect to bore-hole 2.

47 Trans Mountain says that it will remediate the area, as it is required to do under the Act and, in fact, it will improve the area by planting better trees than the alder that it removed.

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48 Finally, Trans Mountain challenges the expertise of Burnaby's arborist to give the opinions which he gives on areas other than those within the expertise of an arborist.

49 I am not persuaded that felling the limited number of trees that Trans Mountain has felled and proposes to fell within a relatively small area of the Burnaby Mountain Conservation Area would constitute irreparable harm. Moreover, as Trans Mountain submitted and the Act provides in s. 75, Trans Mountain is required to remediate any damage that it causes to the area. I am not satisfied that the investigations to be conducted by Trans Mountain constitute irreparable harm as contemplated in RJR-MacDonald Inc. as to warrant an injunction.

50 The second manner in which Burnaby says that it is suffering irreparable harm is that it is not able to enforce its bylaws. First, as I have noted, the NEB can determine whether the bylaws are invalid for the purposes of the matter before it. Burnaby can advance its position and presumably has done so, in the decision now pending before the NEB. In the event that the NEB determines that the bylaw provisions prevail, presumably the NEB will not issue the order sought by Trans Mountain. Second, Burnaby apparently has already issued orders enforcing its bylaws. Whether those orders are upheld by the courts remains to be seen. However, it cannot be said that Burnaby is not able to enforce its bylaws. In the event that the NEB determines that the bylaws are invalid for the purpose of the matter before it, it will grant the order sought by Trans Mountain. Burnaby will have it rights of appeal from that decision.

(3) Does the Balance of Convenience Favour Burnaby?

51 In my view, the balance of convenience does not favour Burnaby's position. Were I to issue the order sought by Burnaby, it would enjoin further orders from the NEB, should those conflict with the Burnaby bylaws. As I have said, there is another forum with the jurisdiction to determine these matters. Burnaby and Trans Mountain are already participating in that forum. I cannot see that the balance of convenience favours Burnaby and requires an injunction from this court to pre-empt any decision that may be made by the NEB.

52 I am satisfied that were this court to issue the order sought by Burnaby, there would be a delay, in all likelihood a significant delay, that would cause prejudice to Trans Mountain.

53 The application is dismissed with costs to Trans Mountain. Application dismissed.

Footnotes * Leave to appeal refused at Burnaby (City) v. Trans Mountain Pipeline ULC (2014), 31 M.P.L.R. (5th) 225, 2014 BCCA 465, 2014 CarswellBC 3502, 67 B.C.L.R. (5th) 358 (B.C. C.A.).

Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 9 THIS IS EXHIBIT C'3)) Referred to in the Affidavit of Michael Davies Sworn before me this 26th day of October A.D. 2017

A COMMISSIONER FOR OATHS IN AND FOR BRITISH COLUMBIA

SHAI\NON DAVIDSON Barrister & Solicitor Osler, Hoskin & Harcourt LLP Suite 1700, Guinness Tower 1055 West Hasting Street Vancouver,Bc V6E2E9 Telephone : 604.692.27 54

('4)' THIS IS EXHIBIT Referred to in the Affidavit of Michael Davies Sworn before me this 26th day of October A.D. 2017

COMMISSIONER FOR OATHS IN AND FOR BRITISH COLUMBIA

SHANNON DAVIDSON Barrister & Solicitor Osler, Hoskin & Harcourt LLP Suite 1700, Guinness Tower 1055 V/est Hasting Street Vancouver,Bc V6E2E9 Telephone : 604.692.27 54

Date: 20141212

Docket: 14-A-63

Ottawa, Ontario, December 12, 2014

Coram: NOËL C.J. NADON J.A. STRATAS J.A.

BETWEEN:

CITY OF BURNABY

Appellant

and

THE NATIONAL ENERGY BOARD and TRANS MOUNTAIN PIPELINE ULC

Respondents

ORDER

WHEREAS the City of Burnaby moves for leave to appeal under subsection 22(1)

of the National Energy Board Act , R.S.C. 1985, c. N-7 from Ruling No. 40 dated October

23, 2014 of the National Energy Board;

AND WHEREAS the Court has read and considered the motion records of the City of

Burnaby and Trans Mountain Pipeline ULC and the reply of the City of Burnaby, the National

Energy Board declining to participate; Page: 2

THIS COURT ORDERS that leave to appeal is dismissed with costs.

"Marc Noël" C.J.

(65'' THIS IS EXHIBIT Referred to in the Affidavit of Michael Davies

Swom before me this 26th day of October A.D. 2017

A FOR OATHS IN AND FOR BRITISH COLUMBIA

SHANNON DAVIDSON Barrister & Solicitor Osler, Hoskin & Harcourt LLP Suite 1700, Guinness Tower 1055 V/est Hasting Street Vancouver,Bc V6E2E9 Telephone : 604.692.27 54 Trans Mountain Pipeline ULC v. Gold, 2014 BCSC 2133, 2014 CarswellBC 3373 2014 BCSC 2133, 2014 CarswellBC 3373, [2015] B.C.W.L.D. 297...

2014 BCSC 2133 British Columbia Supreme Court

Trans Mountain Pipeline ULC v. Gold

2014 CarswellBC 3373, 2014 BCSC 2133, [2015] B.C.W.L.D. 297, [2015] B.C.W.L.D. 391, 247 A.C.W.S. (3d) 436, 92 C.E.L.R. (3d) 258

Trans Mountain Pipeline ULC, Plaintiff and Adam Gold, Mia Nissen, Stephen Collis, Lynne Quarmby, Alan Dutton in his personal capacity and as a representative of Burnaby Residents opposing Kinder Morgan Expansion also known as BROKE, John Doe, Jane Doe and persons unknown, Defendants

A.F. Cullen A.C.J.S.C.

Heard: November 5-7, 2014 Judgment: November 14, 2014 * Docket: Vancouver S148358

Counsel: W.C. Kaplan, Q.C., M. Good, for Plaintiff J. Gratl, for Defendants, Alan Gold and Mia Nissen C. Leggett, S. Sharp, for Defendants, Lynne Quarmby and Stephen Collis N. Chantler, for Defendant, Alan Dutton and BROKE R.K. Friesen, for Attorney General of Canada on behalf of the RCMP

Subject: Civil Practice and Procedure; Environmental; Natural Resources; Property; Torts

Headnote Remedies --- Injunctions — Rules governing injunctions — Jurisdiction of court — Whether court having jurisdiction — Miscellaneous Action arose from opposition to proposed expansion of pipeline — Project was controversial due to concerns of environmental degradation — Plaintiff applied to National Energy Board for approval of project — Plaintiff was required to conduct assessment, which required it to have access to city land — Plaintiff was not successful in securing city's cooperation — Board issued order stating its opinion that plaintiff had power to enter city's land without city's agreement and did not require board order for temporary access — City continued to resist plaintiff's activities — Board ordered city to allow plaintiff to access land to conduct mandatory field studies — Plaintiff dispatched employees and contractors but encountered protesters who succeeded in stopping work — Plaintiff claimed that defendants engaged in trespass, nuisance, assault, intimidation, intentional interference with contractual relations and conspiracy — Plaintiff applied for injunction to enable completion of field studies — Application granted — Activities at issue were ones over which court retained jurisdiction — What was alleged were tortious activities by parties not engaged in processes before board — Plaintiff sought remedies for alleged tortious behaviour and there was no legislative basis for board to assess or award damages for such behaviour — What was before court was separate case of tort that arose not expressly or inferentially from statutory scheme but only incidentally to it — Application was not premature — Plaintiff established strong prima facie case with respect to some of torts that were pleaded — Plaintiff had express lawful authority to access parts of land and conduct activities and it had been prevented from doing so — Court could conclude that torts of assault and intimidation were made out — Court could reasonably conclude that there was concerted and coordinated effort to thwart plaintiff from performing its duties through unlawful means — Failure to grant injunction would cause plaintiff irreparable harm, but to grant injunction would not cause irreparable harm to defendants — Balance of convenience favoured plaintiff.

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Environmental law --- Statutory protection of environment — Environmental assessment — Miscellaneous Action arose from opposition to proposed expansion of pipeline — Project was controversial due to concerns of environmental degradation — Plaintiff applied to National Energy Board for approval of project — Plaintiff was required to conduct assessment, which required it to have access to city land — Plaintiff was not successful in securing city's cooperation — Board issued order stating its opinion that plaintiff had power to enter city's land without city's agreement and did not require board order for temporary access — City continued to resist plaintiff's activities — Board ordered city to allow plaintiff to access land to conduct mandatory field studies — Plaintiff dispatched employees and contractors but encountered protesters who succeeded in stopping work — Plaintiff claimed that defendants engaged in trespass, nuisance, assault, intimidation, intentional interference with contractual relations and conspiracy — Plaintiff applied for injunction to enable completion of field studies — Application granted — Activities at issue were ones over which court retained jurisdiction — What was alleged were tortious activities by parties not engaged in processes before board — Plaintiff sought remedies for alleged tortious behaviour and there was no legislative basis for board to assess or award damages for such behaviour — What was before court was separate case of tort that arose not expressly or inferentially from statutory scheme but only incidentally to it — Application was not premature — Plaintiff established strong prima facie case with respect to some of torts that were pleaded — Plaintiff had express lawful authority to access parts of land and conduct activities and it had been prevented from doing so — Court could conclude that torts of assault and intimidation were made out — Court could reasonably conclude that there was concerted and coordinated effort to thwart plaintiff from performing its duties through unlawful means — Failure to grant injunction would cause plaintiff irreparable harm, but to grant injunction would not cause irreparable harm to defendants — Balance of convenience favoured plaintiff.

Table of Authorities Cases considered by A.F. Cullen A.C.J.S.C.:

Burnaby (City) v. Trans Mountain Pipeline ULC (2014), 2014 BCSC 1820, 2014 CarswellBC 2857, 27 M.P.L.R. (5th) 337 (B.C. S.C.) — followed

International Forest Products Ltd. v. Kern (2000), 2000 BCSC 888, 2000 CarswellBC 1181, [2000] B.C.T.C. 373 (B.C. S.C. [In Chambers]) — referred to

Kelly v. Ontario (2008), 2008 CarswellOnt 2768, (sub nom. Kelly v. Ontario (Attorney General)) 171 C.R.R. (2d) 97, 91 O.R. (3d) 100 (Ont. S.C.J.) — referred to

MacMillan Bloedel Ltd. v. Simpson (1994), 96 B.C.L.R. (2d) 201, 1994 CarswellBC 415, [1994] 10 W.W.R. 705, 32 C.P.C. (3d) 11, 118 D.L.R. (4th) 1, 93 C.C.C. (3d) 289, (sub nom. MacMillan Bloedel Ltd. v. Greenpeace Canada) 50 B.C.A.C. 100, (sub nom. MacMillan Bloedel Ltd. v. Greenpeace Canada) 82 W.A.C. 100 (B.C. C.A.) — followed

MacMillan Bloedel Ltd. v. Simpson (1996), [1996] 2 S.C.R. 1048, (sub nom. MacMillan Bloedel Ltd. v. Greenpeace Canada) 79 B.C.A.C. 135, (sub nom. MacMillan Bloedel Ltd. v. Greenpeace Canada) 129 W.A.C. 135, 2 C.P.C. (4th) 161, [1996] 8 W.W.R. 305, 22 B.C.L.R. (3d) 201, 137 D.L.R. (4th) 633, 109 C.C.C. (3d) 259, (sub nom. MacMillan Bloedel Ltd. v. Greenpeace Canada) 199 N.R. 279, 22 C.E.L.R. (N.S.) 1, 1996 CarswellBC 2301, 1996 CarswellBC 2302 (S.C.C.) — referred to

Mainland Sawmills Ltd. v. IWA-Canada, Local 1-3567 Society (2004), 37 C.C.E.L. (3d) 89, 27 C.C.L.T. (3d) 273, 37 C.C.E.L. (3d) 91, 2004 BCSC 1469, 2004 CarswellBC 2617, 33 B.C.L.R. (4th) 110, 2005 C.L.L.C. 220-005 (B.C. S.C.) — followed

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Mainland Sawmills Ltd. v. IWA-Canada, Local 1-3567 Society (2005), 2005 BCCA 89, 2005 CarswellBC 317, 36 B.C.L.R. (4th) 310, 208 B.C.A.C. 270, 344 W.A.C. 270 (B.C. C.A. [In Chambers]) — referred to

Okwuobi c. Lester B. Pearson (Commission scolaire) (2005), 27 Admin. L.R. (4th) 1, [2005] 1 S.C.R. 257, 2005 CSC 16, (sub nom. Okwuobi (Tutor of) v. Lester B. Pearson School Board) 250 D.L.R. (4th) 454, (sub nom. Okwuobi v. Lester B. Pearson School Board) 129 C.R.R. (2d) 320, 2005 SCC 16, 2005 CarswellQue 765, 2005 CarswellQue 766, (sub nom. Okwuobi v. Quebec (Attorney General)) 331 N.R. 300 (S.C.C.) — considered

Regina Police Assn. v. Regina (City) Police Commissioners (2000), (sub nom. Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners) 183 D.L.R. (4th) 14, [2000] 4 W.W.R. 149, 50 C.C.E.L. (2d) 1, 2000 CarswellSask 90, 2000 CarswellSask 91, 2000 SCC 14, (sub nom. Regina Police Assn. Inc. v. Board of Police Commissioners of Regina) 251 N.R. 16, (sub nom. Board of Police Commissioners of the City of Regina v. Regina Police Assn.) 2000 C.L.L.C. 220-027, 2000 CSC 14, (sub nom. Regina Police Assn. Inc. v. Board of Police Commissioners of Regina) 189 Sask. R. 23, (sub nom. Regina Police Assn. Inc. v. Board of Police Commissioners of Regina) 216 W.A.C. 23, (sub nom. Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners) [2000] 1 S.C.R. 360 (S.C.C.) — considered

Relentless Energy Corp. v. Davis (2004), 2004 CarswellBC 2643, 2004 BCSC 1492, 22 Admin. L.R. (4th) 251, 34 B.C.L.R. (4th) 336, [2005] 1 C.N.L.R. 325, 2 C.P.C. (6th) 329 (B.C. S.C.) — referred to

Ryan v. Victoria (City) (1999), 234 N.R. 201, 168 D.L.R. (4th) 513, 117 B.C.A.C. 103, 191 W.A.C. 103, 40 M.V.R. (3d) 1, 44 C.C.L.T. (2d) 1, 59 B.C.L.R. (3d) 81, 50 M.P.L.R. (2d) 1, [1999] 6 W.W.R. 61, [1999] 1 S.C.R. 201, 4 C.C.L.T. (2d) 1, 1999 CarswellBC 79, 1999 CarswellBC 80 (S.C.C.) — considered

St. Anne-Nackawic Pulp & Paper Co. v. C.P.U., Local 219 (1986), 1986 CarswellNB 116, 184 A.P.R. 236, 86 C.L.L.C. 14,037, [1986] 1 S.C.R. 704, 28 D.L.R. (4th) 1, 68 N.R. 112, 73 N.B.R. (2d) 236, 1986 CarswellNB 116F (S.C.C.) — followed

Vancouver Museums & Planetarium Assn. v. V.M.R.E.U. (1981), 27 B.C.L.R. 73, 1981 CarswellBC 48, 81 C.L.L.C. 14,111 (B.C. C.A.) — considered

Weber v. Ontario Hydro (1995), 12 C.C.E.L. (2d) 1, 24 C.C.L.T. (2d) 217, 30 Admin. L.R. (2d) 1, 24 O.R. (3d) 358 (note), 125 D.L.R. (4th) 583, 183 N.R. 241, 30 C.R.R. (2d) 1, 82 O.A.C. 321, [1995] 2 S.C.R. 929, 1995 CarswellOnt 240, 1995 CarswellOnt 529, [1995] L.V.I. 2687-1, 95 C.L.L.C. 210-027, 24 O.R. (3d) 358 (S.C.C.) — followed

Statutes considered:

Charte de la langue française, RLRQ, c. C-11 en général — referred to

art. 73 — considered

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Labour Relations Act, R.S.O. 1990, c. L.2 s. 45(1) — considered

National Energy Board Act, R.S.C. 1985, c. N-7 Generally — referred to

s. 11 — considered

s. 12 — considered

s. 13 — considered

s. 52 — considered

s. 73 — considered

s. 73(a) — considered

s. 75 — considered

Occupiers Liability Act, R.S.B.C. 1996, c. 337 s. 1 "occupier" — referred to

Trespass Act, R.S.B.C. 1996, c. 462 Generally — referred to

s. 1 "occupier" — referred to

APPLICATION by plaintiff for injunction to enable completion of field studies for pipeline project.

A.F. Cullen A.C.J.S.C.:

1 This is an application for an injunction brought by the plaintiff Trans Mountain Pipeline ULC against certain named and unknown defendants.

2 The underlying action and the injunction application arise from opposition to a proposed expansion of an existing pipeline system "which currently moves crude oil, refined and semi refined petroleum products from Sherwood Park, Alberta to marketing terminals and refineries in Central B.C. to the lower mainland, Puget Sound or Washington State and other markets including California, U.S. Gulf Coast and overseas." The pipeline is 1,147 kilometers long and has a capacity of 300,000 barrels a day.

3 The proposed expansion is in response to a demand from producers, refineries and offshore markets.

4 The project is controversial because of concerns of environmental degradation through the increased use of fossil fuels throughout the world and potential for immediate, local environmental damage due to leaks and spills.

5 The movement of petroleum and crude is products through pipelines is regulated and controlled through the authority of the National Energy Board (the "NEB") and its enabling act, the National Energy Board Act, R.S.C., 1985, c. N-7 [NEBA].

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6 The plaintiff applied to the NEB under s. 52 of the NEBA on December 16, 2013 seeking approval of the proposed project, which would involve about 987 new kilometers of buried pipeline and at 193 kilometers of reactivated existing pipeline.

7 On April 2, 2014, the NEB issued Hearing Order OH 001 2014 to establish timelines and a process for the project hearing, identifying various issues it would consider in a hearing of the plaintiff's application.

8 On May 14, 2014, the plaintiff provided responses to information requests issued by the NEB proposing two alternate routes, one being a "preferred corridor", said to be responsive to stakeholders' feedback involving "a trenchless direct route option where a tunnel would be used to install the pipelines through Burnaby Mountain."

9 That option required the plaintiff to undertake certain studies and assessments to meet requirements of the NEB for the hearing process.

10 To conduct the requisite assessment, the plaintiff requires access to lands within the City of Burnaby as described in the Notice of Civil Claim (the "NOCC") at para. 21. The studies mandated by the NEB are set out in para. 22 of the NOCC as follows:

22. To meet the NEB's information requirements for their assessment of the Preferred Corridor, Trans Mountain must, inter alia, conduct the following investigations as part of the Mandated Field Studies on the Burnaby Lands, and elsewhere, including:

(a) geotechnical investigations, including drilling of four boreholes at two sites;

(b) soil surveys;

(d) vegetation surveys focusing on the entry and exit points of the Preferred Corridor;

(e) wildlife surveys focusing on the entry and exit points of the Preferred Corridor;

(f) archaeological surveys; and

(g) an update on the human occupancy and resource use element in consideration of the Preferred Corridor.

11 On July 15, 2014, the NEB issued Procedural Direction #4 requiring the plaintiff, among other things, to "file new studies and information to the preferred corridor by December 1, 2014."

12 The plaintiff was not successful in securing Burnaby's cooperation in permitting access to the lands to conduct the necessary assessment. Between May 2012 and September 2014, the plaintiff and Burnaby communicated their respective positions.

13 On August 12, 2014, on application by the plaintiff to the NEB issued Order 28 stating its opinion that "Trans Mountain has the power to enter into and on Burnaby land without Burnaby's agreement in the manner outlined in Trans Mountain's 25 July 2014 request. Trans Mountain does not require a Board order for temporary access, nor has it requested a Board order."

14 Thereafter, Burnaby continued to resist the plaintiff's activities on Burnaby Mountain and on September 2, 2014, the City issued two orders to cease Bylaw contraventions under the Burnaby Street and Traffic Bylaw and the Burnaby Parks Regulation by law.

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15 On September 2, 2014, the plaintiff filed a Notice of Motion with the NEB seeking an order that Burnaby comply with s. 73(a) of the NEBA. That section reads as follows:

73. A company may, for the purposes of its undertaking, subject to this Act and to any Special Act applicable to it,

(a) enter into and on any Crown land without previous licence therefor, or into or on the land of any person, lying in the intended route of its pipeline, and make surveys, examinations or other necessary arrangements on the land for fixing the site of the pipeline, and set out and ascertain such parts of the land as are necessary and proper for the pipeline;

. . .

16 On September 8, 2014, Burnaby brought parallel proceedings in the B.C. Supreme Court seeking among other things, an injunction to prohibit Trans Mountain from conducting the mandated field studies. On September 11, the application for an injunction was heard. It was dismissed on September 17 with written reasons provided on September 26, 2014 indexed as Burnaby (City) v. Trans Mountain Pipeline ULC, 2014 BCSC 1820 (B.C. S.C.) [Burnaby (City)]. Burnaby's injunction application was dismissed.

17 On October 9, 2014, the plaintiff's application to the NEB was heard. On October 23, 2014 in Ruling 40 the NEB ordered Burnaby to allow Trans Mountain access to the Burnaby lands to conduct the mandated field study studies.

18 Burnaby has appealed both the dismissal of its application for an injunction and the NEB order, the former to the B.C. Court of Appeal and the latter to the Federal Court of Appeal. The order from Ruling 40 has been filed in the Federal Court of Canada.

19 In the meantime, following the issuance of the NEB Order 40, Trans Mountain gave notice to Burnaby of its intention to resume work on the mandated studies on October 29, 2014.

20 Essentially, it is the events of that day which underpin this action and this application.

21 The plaintiff/applicant has summarized the events at issue in paragraphs 13 to 20 of its Notice of Application as follows:

13. On October 29, 2014, Trans Mountain dispatched employees and contractors to three separate locations to perform work: Barnet Marine Park, adjacent to Barnet Highway in Burnaby, Borehole No. 1, a wooded area on Burnaby Mountain, and Borehole No. 2.

14. The work intended to be performed at Borehole No. 1 and No. 2 was simply to erect posts and signage to demark a work zone for upcoming work related to the drilling of boreholes at those locations. At Borehole No. 1 a platform must be erected and a drilling rig installed for the purposes of drilling the borehole. At Borehole No. 2 a mobile drilling platform must be used but the area must be secure first for operational and safety reasons.

15. When the Trans Mountain crew tried to access Borehole No. 1, they encountered a number of protesters congregated in and around the site of Borehole No. 1. The protesters physically blocked access to Borehole No. 1, shouted slogans and comments at the crew and behaved in a manner than made it clear to the crew that if they attempted to perform the tasks for which they came to the site of Borehole No. 1 there would be a physical confrontation and that they would be physically prevented from doing so.

16. The same work crew was intended to erect and post signage at Borehole No. 2. The crew attended at Borehole No. 2 but determined that it would not be possible to perform their work as access was blocked by an encampment, numerous vehicles and many protesters.

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17. The third worksite intended for October 29, 2014 involved the clearing of cut-lines off a trail on Burnaby Lands that runs past the Kask Bros, plant on Barnet Highway towards the Westridge Terminal. The purpose of the work is to clear paths for certain geophysical studies that will be done in the park to determine its viability as a corridor for the proposed pipeline. The work involved marking out and cutting certain pathways heading north off the trail that runs east to west from the Kask Bros, and the Westridge Terminal. When the Trans Mountain work crew arrived at the Barnet Marine Park, there were no other individuals in sight and the work area was set up and marked out with signage which indicated no entry into the worksite. The signage was posted on both the eastern and western extremities as well as other locations.

18. The clearing work proceeded without incident in the morning hours but, at approximately 12 pm, two women arrived at the site, went to the area that the crew was working, and seated themselves in the area which stopped the work. The continuation of the work at that point would have created a safety danger to those individuals.

19. Shortly thereafter, additional protesters arrived. They surrounded the work crew in the work area, walking past the No Entry signs and taking them out of the ground. The protesters acted in a very aggressive and loud manner, including yelling with a bullhorn and using the siren function of the bullhorn close to the ears of the work crew.

20. The protesters succeeded in halting the ongoing work. Eventually, the RCMP attended at the site and the Trans Mountain crew departed the site as it was clear that they would be unable to continue the work commenced that morning.

22 In support of its application, the plaintiff has filed two affidavits of Carey Johannesson contracted to Trans Mountain as Projecthead to the expansion project, the affidavits of Gordon Santaga, Alejandro Hurtado-Arias, Leonard Nuttall, Andrew Newman, contracted as security workers to the plaintiff and an affidavit of Gregory Key, also contracted to Trans Mountain. In their affidavits, these deponents describe their observations and experience on Burnaby Mountain on October 29, 2014.

23 Included in the plaintiff's materials are photographs and videos of the events of the day, as well as several publications, and a Youtube video of an interview conducted of Stephen Collis, one of the named defendants in this action.

24 It is the plaintiff's position that the evidence which they have marshalled and presented establishes to the necessary degree, causes of action in trespass, nuisance, assault, intimidation, intentional interference with contractual relations, and conspiracy.

25 The applicant relies on evidence that if an injunction is not imposed to enable it to complete the field tests, there will be substantial harm to it and to third parties. In particular, the appellants say a delay in completing field studies will delay the hearing before the NEB to determine the appropriateness of the project and will create uncertainty about the project. The plaintiff says delays will lead to direct financial harm to it, and to others contracting with it, estimating direct costs of $5.6 million per month of delay and potentially losses of revenue of many millions of dollars per month.

26 Additionally, there are significant daily costs related to keeping crews on standby pending determination of this application. The plaintiff also points to serious threats to the validity of the preferred corridor and even a potential failure of the project.

27 The plaintiff also points to potential harm to third parties that could result from the failure to enjoin the defendants' activities that prevent these third parties from doing their work. This potential harm includes loss of opportunity for groups to consult in the process, financial harm to local, provincial and federal economy and "delay and compromise of a Canadian National Infrastructure project".

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28 The plaintiff relies on the well-known authority of RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (S.C.C.), at 334 [RJR-MacDonald] as follows:

Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. It may be helpful to consider each aspect of the test and then apply it to the facts presented in these cases.

29 The plaintiff submits that the evidence establishes at least a serious question to be tried, the prospect of irreparable harm to the plaintiff (and to third parties), and that greater harm would enure to the plaintiff if no injunction were granted, than to the defendants if it were not.

30 The resistance of the named defendants to the injunction is predicated upon a number of factual and legal grounds. In broad terms, the defendants' challenge the plaintiff's application on the basis that this Court either lacks jurisdiction, or ought to decline jurisdiction, over its subject matter to the NEB; that this application is premature in that it is an attempt to circumvent the appeals before the Federal Court of Appeal and the B.C. Court of Appeal; and, that on the merits this application fails to meet the test for an injunction.

Jurisdiction

31 In its essence, the defendants' argument on jurisdiction is that where a specialized Tribunal granted exclusive jurisdiction under a comprehensive legislative scheme and a court have concurrent jurisdiction over the subject matter of a dispute, barring exception circumstances, the court should decline to exercise its jurisdiction.

32 The defendants rely on the provision of the NEBA. Specifically, they rely on subsections 11, 12, 13, 73 and 75 which read as follows:

11. (1) The Board is a court of record.

(2) The Board shall have an official seal, which shall be judicially noticed.

(3) The Board has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders, the entry on and inspection of property and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record.

(4) Subject to subsections 6(2.1) and (2.2), all applications and proceedings before the Board are to be dealt with as expeditiously as the circumstances and considerations of fairness permit, but, in any case, within the time limit provided for under this Act, if there is one.

12. (1) The Board has full and exclusive jurisdiction to inquire into, hear and determine any matter

(a) where it appears to the Board that any person has failed to do any act, matter or thing required to be done by this Act or by any regulation, certificate, licence or permit, or any order or direction made by the Board, or that any person has done or is doing any act, matter or thing contrary to or in contravention of this Act, or any such regulation, certificate, licence, permit, order or direction; or

(b) where it appears to the Board that the circumstances may require the Board, in the public interest, to make any order or give any direction, leave, sanction or approval that by law it is authorized to make or give, or with

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respect to any matter, act or thing that by this Act or any such regulation, certificate, licence, permit, order or direction is prohibited, sanctioned or required to be done.

(1.1) The Board may inquire into any accident involving a pipeline or international power line or other facility the construction or operation of which is regulated by the Board and may, at the conclusion of the inquiry, make

(a) findings as to the cause of the accident or factors contributing to it;

(b) recommendations relating to the prevention of future similar accidents; or

(2) For the purposes of this Act, the Board has full jurisdiction to hear and determine all matters, whether of law or of fact.

13. The Board may

(a) order and require any person to do, forthwith, or within or at any specified time and in any manner prescribed by the Board, any act, matter or thing that such person is or may be required to do under this Act, or any regulation, certificate, licence or permit, or any order or direction made or given under this Act; and

(b) forbid the doing or continuing of any act, matter or thing that is contrary to this Act or any such regulation, certificate, licence, permit, order or direction.

73. A company may, for the purposes of its undertaking, subject to this Act and to any Special Act applicable to it,

(b) purchase, take and hold of and from any person any land or other property necessary for the construction, maintenance and operation of its pipeline and sell or otherwise dispose of any of its land or property that for any reason has become unnecessary for the purpose of the pipeline;

(c) construct, lay, carry or place its pipeline across, on or under the land of any person on the located line of the pipeline;

(d) join its pipeline with the transmission facilities of any other person at any point on its route;

(e) construct, erect and maintain all necessary and convenient roads, buildings, houses, stations, depots, wharves, docks and other structures, and construct, purchase and acquire machinery and other apparatus necessary for the construction, maintenance and operation of its pipeline;

(f) construct, maintain and operate branch lines, and for that purpose exercise all the powers, privileges and authority necessary therefor, in as full and ample a manner as for a pipeline;

(g) alter, repair or discontinue the works mentioned in this section, or any of them, and substitute others in their stead;

(h) transmit hydrocarbons by pipeline and regulate the time and manner in which hydrocarbons shall be transmitted, and the tolls to be charged therefor; and

(i) do all other acts necessary for the construction, maintenance and operation of its pipeline.

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75. A company shall, in the exercise of the powers granted by this Act or a Special Act, do as little damage as possible, and shall make full compensation in the manner provided in this Act and in a Special Act, to all persons interested, for all damage sustained by them by reason of the exercise of those powers.

33 The defendants also rely on language in the NEB's Ruling 40 at p. 16 where the NEB held:

If justified by a particular fact situation, the Board has the authority to issue an order to allow the NEB's statutory scheme to be carried out. That includes issuing an order under subsection 13(b) of the NEB Act that forbids the doing of any Act, matter or thing that is contrary to the NEB Act, or the Board's directions.

34 In addition to the specifics of the NEB's authority and jurisdiction under its enabling legislation, the defendants rely on jurisprudence considering the issue of concurrent jurisdiction between courts and tribunals, citing Regina Police Assn. v. Regina (City) Police Commissioners, 2000 SCC 14 (S.C.C.), [Regina Police Assn.], Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 (S.C.C.), [Weber], Okwuobi c. Lester B. Pearson (Commission scolaire), 2005 SCC 16 (S.C.C.) [Okwuobi]; and Kelly v. Ontario (2008), 91 O.R. (3d) 100, 167 A.C.W.S. (3d) 907 (Ont. S.C.J.) [Kelly].

35 In particular, the defendants rely on the Supreme Court of Canada's (the "SCC") ruling in Okwuobi. That case involved parents of students who sought access for their children to public instruction in English in Quebec, pursuant to s. 73 of the Charter of the French language, R.S.Q. c. C -11. They sought injunctive and declaratory relief in the Quebec Superior Court, by passing the administrative appeal process set out in the Charter of French language, involving the jurisdiction of the Administrative Tribunal of Quebec ("ATQ").

36 In ruling the appellant parents had no right to bypass the ATQ because of its exclusive jurisdiction to hear appeals in respect of entitlement to minority language education, the SCC dealt with the "residual jurisdiction" of the Superior Court under such a legislative scheme "to grant injunctive relief in urgent situations and, potentially, to hear direct constitutional challenges to a legislative scheme": Okwuobi at para. 1.

37 In respect of the former circumstances, the Court held as follows as paras. 51 to 53:

51 The legislature's intention to confer exclusive jurisdiction over the matter in issue on the ATQ should be respected to the greatest extent possible. However, the fact remains that an injunction is defined in art. 751 of the Code of Civil Procedure as "an order of the Superior Court or of a judge thereof". Thus, the Superior Court has exclusive jurisdiction to grant an injunction, in the strict sense of the word.

52 That said, an injunction is a discretionary remedy that courts have on many occasions declined to grant where other avenues of recourse were available (see D. Ferland and B. Emery, Précis de procédure civile du Québec (4th ed. 2003), vol. 2, at p. 435). We have accordingly been at pains in this judgment to emphasize the exclusive jurisdiction and broad remedial powers accorded to the ATQ. As a result, the Superior Court should exercise sparingly its discretion to award injunctive relief in minority language education claims. Such injunctive relief should be granted only to fill in the cracks in the administrative process, so to speak. In this way, injunctive relief can complement the administrative process rather than serving to weaken it.

53 As a result, recourse to urgent injunctive relief remains possible in certain circumstances, but it should remain the rare exception, rather than the rule. Seeking injunctive relief should not be allowed to develop into a means of bypassing the judicial process, or as P.-A. Gendreau et al. note in L'injonction (1998), at p. 201: [translation] "... neither the injunction nor any other procedure may be used to short-circuit an administrative tribunal's exercise of its exclusive jurisdiction or to obtain a review of its decision...".

38 The defendants contend that all of the substantive issues between the parties are already before the NEB and that, particularly in view of the judgment of Madam Justice Brown regarding Burnaby's application for an injunction against

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Trans Mountain in its action commenced in this Court on September 8, 2014, this Court should decline to exercise its jurisdiction in favour of the NEB. The defendants cite Brown J. in Burnaby (City) where she held as follows at para 16:

[16] In my view, it is not appropriate to issue the injunction sought by Burnaby. The matter is properly before the NEB. Burnaby has the ability to pursue the relief that it seeks in that proceeding and, indeed, has done so. In the event that the NEB reaches conclusions that Burnaby considers to be in error, Burnaby may pursue an appeal to the Federal Court and may seek an injunction or a stay at that Court. Accordingly, this Court need not grant an injunction.

39 Brown J. also noted at para. 31 as follows:

[31] Here, we are not dealing with a private entity offending bylaws. Rather, the true dispute is between competing public interests. The Act confers on the NEB certain jurisdiction. That includes the right to determine whether it is in the public interest that the pipeline project proceed and that includes permitting certain investigations. The NEB has the right under the Act to control that process.

40 The defendants submit that in view of the ruling of Brown J. it would be inconsistent for this Court to hold that in the present circumstances, the Court has and should exercise its jurisdiction to grant the injunction sought by the plaintiff, as the plaintiff is already engaged before the NEB in relation to its entitlement to conduct the activities on Burnaby Mountain; activities that it is seeking to enforce through this Court.

41 The defendants point out that the NEB is a specialized tribunal with the expertise to determine the nature and scope of the plaintiff's need to perform studies on the mountain, and to determine the nature and breadth of any order required for enforcement. The defendants say the NEB is uniquely positioned to adjudicate this sort of issue and to determine the work that needs to be done under s. 73(a) and how best to enforce it under ss. 12 and 13.

42 In response, the position of the plaintiff is that the defendants' position is unsustainable. The action at issue is based on allegations of tortious behaviour over which this Court, not the NEB, has the necessary constitutional and inherent jurisdiction. The plaintiff says the NEB has no jurisdiction to deal with the allegedly tortious behaviour at issue and that Parliament could not vest them with such authority.

43 The plaintiff says that what is at issue before me is fundamentally different from what was before Brown J. in Burnaby (City). In the present case, there is no NEB order that affects the defendants, whereas in the case before Brown J. there was an order which Burnaby said directly implicated its authority to make bylaws.

44 Here, the plaintiff says the relationship between the plaintiff and the defendants is not one that is engaged by the proceedings before the NEB, nor by the leave to appeal applications before the Federal Court of Appeal.

45 The plaintiff relies in particular on the decision of the British Columbia Court of Appeal in Vancouver Museums & Planetarium Assn. v. V.M.R.E.U. (1981), 27 B.C.L.R. 73, 8 A.C.W.S. (2d) 92 (B.C. C.A.) as authority for the proposition that while a specialized tribunal such as the Labour Relations Board has the authority to determine where and when picketing may take place, the Superior Court retains the jurisdiction to deal with the "how".

46 By analogy, the plaintiff argues that it is this Court, and not the NEB that has the jurisdiction to make the judgment whether the evidence of the defendants' actions in whole or in part raise a serious issue to be tried or a strong prima facie case so as to justify consideration of the last two prongs of the RJR-MacDonald test.

47 The plaintiff submits that what is before this Court may be the beginning of a long and difficult issue and the NEB has intrinsic limitations to its powers to deal with such issues, that a court does not have, including being able to: (1) enjoin persons unknown; (2) impose a civil enforcement order; or (3) enforce its own orders, as it must file these orders in Federal Court or this Court. The plaintiff says it would be inappropriate to defer jurisdiction to a tribunal whose expertise has nothing to do with these measures.

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48 The plaintiff emphasizes that there are no parallel proceedings to the case at bar as there were in Burnaby (City) before Brown J. Thus, the plaintiff argues this application, unlike the one before her, cannot be viewed as a collateral attack on the ruling of the NEB or as an attempt to bypass its jurisdiction.

Discussion and Conclusion - Jurisdiction

49 I conclude that although the circumstances before me are distinguishable from those before Brown J., the question of jurisdiction in each case rests on the same jurisprudence.

50 That jurisprudence emerges from a reading of St. Anne-Nackawic Pulp & Paper Co. v. C.P.U., Local 219, [1986] 1 S.C.R. 704 (S.C.C.), [St. Anne Nackawic], Weber, Regina Police Assn. and Okwuobi.

51 At issue in Weber was the interpretation of s. 45(1) of the Labour Relations Act, R.S.O. 1990, c. L.2. The SCC was tasked with determining to what extent s. 45(1) ousted the courts' jurisdiction over Charter and tort claims: Weber at para. 37.

52 The SCC examined the concurrent, overlapping, and exclusive models of jurisdiction with respect to tribunals and found that the exclusive jurisdiction model was applicable: Weber at paras. 39-58. Under this model "disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts": Weber at para. 54. The SCC found that the subject matter underlying the pleadings in trespass, nuisance, deceit, and invasion of privacy fell within the umbrella of the dispute arising out of the collective agreement and could not be separately pursued in the courts: Weber at para. 36. This finding was based on the reasons of Estey J., in St. Anne-Nackawic at 718-719, which McLachlin J. (as she then was) adopted at para. 41:

The collective agreement establishes the broad parameters of the relationship between the employer and his employees. This relationship is properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law. ... The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks.

[Emphasis added by McLachlin J.]

53 However, the SCC in Weber discussed situations under the exclusive jurisdiction model where the courts properly retained jurisdiction at para. 57:

It might occur that a remedy is required which the arbitrator is not empowered to grant. In such a case, the courts of inherent jurisdiction in each province may take jurisdiction. This Court in St. Anne Nackawic confirmed that the New Brunswick Act did not oust the residual inherent jurisdiction of the superior courts to grant injunctions in labour matters (at p. 724). Similarly, the Court of Appeal of British Columbia in Moore v. British Columbia (1988), 50 D.L.R. (4th) 29, at p. 38, accepted that the court's residual jurisdiction to grant a declaration was not ousted by the British Columbia labour legislation, although it declined to exercise that jurisdiction on the ground that the powers of the arbitrator were sufficient to remedy the wrong and that deference was owed to the labour tribunal. What must be avoided, to use the language of Estey J. in St. Anne Nackawic (at p. 723), is a "real deprivation of ultimate remedy".

54 McLachlin J. also noted at para. 54 as follows:

This approach does not preclude all actions in the courts between employer and employee. Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the court. [citations omitted].

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Additionally, the courts possess residual jurisdiction based on special powers, as discussed by Estey J. in St. Anne Nackawic, supra.

55 Justice McLachlin went on to deal with the argument that "jurisdiction over torts and Charter claims should not be conferred on arbitrators" under the labour legislative regime "because they lack expertise on the legal questions which such claims raise." Weber at para. 55. She wrote at para. 55 as follows:

...The answer to this concern is that arbitrators are subject to judicial review. Within the parameters of that review, their errors may be corrected by the courts. The procedural inconvenience of an occasional application for judicial review is outweighed by the advantages of having a single tribunal deciding all issues arising from the dispute in the first instance. This does not mean that the arbitrator will consider separate "cases" of tort, contract or Charter. Rather, in dealing with the dispute under the collective agreement and fashioning an appropriate remedy, the arbitrator will have regard to whether the breach of the collective agreement also constitutes a breach of a common law duty, or of the Charter.

56 In Regina Police Assn., Justice Bastarache for the Court summarized the reasoning in Weber as follows at para. 39:

To summarize, the underlying rationale of the decision in Weber, supra, is to ensure that jurisdictional issues are decided in a manner that is consistent with the statutory schemes governing the parties. The analysis applies whether the choice of forums is between the courts and a statutorily created adjudicative body, or between two statutorily created bodies. The key question in each case is whether the essential character of a dispute, in its factual context, arises either expressly or inferentially from a statutory scheme. In determining this question, a liberal interpretation of the legislation is required to ensure that a scheme is not offended by the conferral of jurisdiction ... not intended by the legislature.

[Emphasis added.]

57 In Okwuobi, the statutory scheme at issue conferred exclusive jurisdiction on the ATQ to hear appeals in respect of entitlement to minority language education.

58 The Court summarized the process at para. 19 as follows:

The administrative process thus requires that before turning to the superior court to gain access to minority language education in Quebec, a claimant must first apply to a designated person for a certificate of eligibility, and, if necessary, appeal that decision to the ATQ. Following a determination by the ATQ, it is possible for the claimant to seek relief from the superior court.

59 The SCC in Okwuobi acknowledged that the superior courts have a residual jurisdiction "to grant injunctive relief in urgent situations and, potentially, to hear direct constitutional challenges to a legislative scheme": at para. 50.

60 As earlier noted, the Court in Okwuobi nevertheless concluded that "recourse to urgent injunctive relief ... should remain the rare exception, rather than the rule": at para. 53. In that case, the appellants were essentially asking the Quebec Superior Court to usurp the authority of the ATQ with respect to minority language education claims.

61 In St. Anne-Nackawic (which was the case upon which Weber v. Ontario Hydro was based), a somewhat different perspective on the residual injunctive power was expressed, in the context of restraining illegal strike activity. While holding that in the context of labour relations legislation with a comprehensive provision for a submission to arbitration, the Court had no jurisdiction to hear an action for damages for breach of the collective agreement and the applicable statute, the Court dealt differently with a superior court's residual power to enjoin the activity.

62 In paras. 29 and 30, Estey J., for the Court held as follows:

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29. When a court issues an injunction to restrain illegal strike activity, the courts have based such relief in both the breach of collective agreement and the breach of statute: Winnipeg Builders' Exchange, supra. However, it is clearly the breach of statute that is most significant. It is the statutory scheme to which the courts have deferred, not the single provision for arbitration in a collective agreement. Thus, in the court below, La Forest J.A. (as he then was), after discussing the statutory scheme, wrote:

To allow a party to a collective agreement, at its whim, to bring an action for damages for what really constitutes a difference arising out of a collective agreement would, as it appears to me, be to set up a remedy in substitution for that established by the Legislature.

He concluded with respect to the power to enjoin illegal strikes, however, that

...this power has been used with the intention of supporting the legislative scheme, not to supplant it. As Cartwright C.J.C. stated in...[Winnipeg Builders' Exchange, supra], "the purposes of the...Act would be in large measure defeated if the Court were to say that it is powerless to restrain the continuation of a strike engaged in in [sic] direct violation of the terms of a collective agreement binding on the employees and in breach of the express provisions of the Act".

30. When viewed from this perspective, it is apparent that the cases affirming the courts' injunctive power do not purport to create a power in the courts to enforce the terms of collective agreements. Rather, they enforce the general law as embodied in the statute, which includes both an express prohibition on strikes during the currency of a collective agreement and provision for binding and enforceable arbitration which, in many cases, would resolve the dispute underlying illegal strike activity. An injunction restraining a strike also upholds incidentally the rights of an employer under a collective agreement, and specifically enforces the individual obligations of the employees on whose behalf the collective agreement was negotiated pursuant to the Industrial Relations Act of New Brunswick, supra. Such incidental effects, as the Winnipeg Builders' Exchange case, supra, demonstrates, are not sufficient reason to deny an injunction to prevent immediate harm arising out of a clearly illegal act, where no adequate alternative remedy exists.

63 He concluded at para. 34, in part, that:

[T]he courts do have a limited residual presence in the labour relations scheme as it has evolved in the legislative program where the conduct amounts to illegal strike or lockout and that the general jurisdiction to issue injunctions under the Judicature Act is unimpaired in this context.

64 As I see it, the critical question for determination on the issue of jurisdiction in this case is that which was posed by Bastarache J. in the Regina Police Assn.decision, that is, whether the essential character of the dispute in its factual context, arises either expressly or inferentially from the statutory scheme of the NEBA?

65 If the answer to that question is yes, then the question becomes whether the court's residual jurisdiction to grant injunctive relief in urgent situations is engaged "with the intention of supporting the legislative scheme, not to supplant it" ... and "where no adequate alternate remedy exists": St. Anne-Nackawic at paras. 29 - 30.

66 An application of Weber principles can be found in the judgment of Morrison J. in Mainland Sawmills Ltd. v. IWA-Canada, Local 1-3567 Society, 2004 BCSC 1469 (B.C. S.C.), leave to appeal refused, 2005 BCCA 89 (B.C. C.A. [In Chambers]). In that case, the plaintiff brought actions in trespass, assault, battery, intimidation and harassment for monetary relief. The defendants argued that the events giving rise to the claims arose from a labour dispute and the specialized Labour Relations Board had exclusive jurisdiction to hear the matters. Madam Justice Morrison described the events giving rise to the tortious behaviour at paras. 25 and 26 of her Judgment:

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[25] The events alleged in the statements of claim of both actions occurred on December 16, 2003 at or around the premises of Mainland at approximately 10:00 p.m. A group estimated to be 100 persons or more, members of Local 1-3567, arrived at Mainland. The plaintiffs allege their purpose was to shut down operations. Some of the group were armed with sticks and bats. They allegedly entered the property of Mainland, where they assaulted several personal plaintiffs. They also caused the forcible removal of some members of Local 2171.

[26] There were allegations of members of Local 2171 being scabs; there were threats of violence as well as acts of violence. When the graveyard shift arrived at 11:00 p.m. at Mainland, they were prevented from entering. The police were called.

67 In her analysis, Morrison J. canvassed the law with respect to torts in labour disputes, including Weber, and found that "[t]he court must retain jurisdiction to deal with tortious or criminal conduct that may accompany picketing": at para. 101. She found that the acts complained of were properly described as torts and thus the proper subject matter for the courts.

68 In my view, this is a case which is akin to the circumstances in Mainland Sawmills, and the activities at issue are ones over which the courts do retain jurisdiction.

69 What is alleged are activities comprising tortious behaviour by parties who are not engaged in the processes before the NEB in respect of either Order 28 or Order 40. What is being sought by the plaintiff in this action before this Court are remedies for the alleged tortious behaviour, including monetary damages and injunctive relief. There is no legislative basis for the NEB to assess or award damages for tortious behaviour. Even though the NEB may have the authority to restrain the activities of the defendants as part of its legislative regime, the court's authority to act to limit the damages incurred by the torts alleged cannot be hindered or precluded by that fact, particularly where as here, a monetary judgment is not likely to be enforceable.

70 I conclude that what is before this Court is in substance a separate case of tort which arises not "expressly or inferentially from a statutory scheme" but only incidentally to it.

71 Unlike the City of Burnaby, which is clearly engaged in a process before the NEB in respect of Order 28 and Order 40, the present defendants are not. Their activities are therefore essentially separate and discrete from the statutory scheme even though their motivations may stem from the Orders issued from it, and the actions taken under it.

72 I thus conclude that there is no bar to the Court assuming jurisdiction in this case.

Prematurity

73 The defendants have argued that it will be premature to issue an injunction in this case as the foundation for the injunction, namely, Trans Mountain's authority to conduct the survey work, is "squarely before the Federal Court of Appeal and the B.C. Court of Appeal." The defendants rely on the fact that the City of Burnaby has sought leave to appeal to the Federal Court of Appeal from the NEB Ruling 40 issued on October 23, 2014 and has sought leave to appeal to the B.C. Court of Appeal from the decision of Brown J. in Burnaby (City) dismissing the City's application for injunctive relief.

74 The defendants argue that if the appeals were to be successful it would undermine the basis for this injunction but by that time the harm would in effect be done and conceivably arrests may have been effected on account of a process that may yet be determined to be unjustified.

75 I do not accept the defendants' submissions on prematurity. The proceedings at bar have nothing to do with the proceedings under appeal which involve the City of Burnaby, the plaintiff, and the NEB. Although Burnaby through its counsel has sought to expedite the application for leave to appeal before the Federal Court of Appeal and has indicated it will seek a stay of proceedings, it has not to date, to my knowledge, done so.

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76 This Court is faced with the state of affairs as they exist today, not as they may become in the future. What the defendants are in effect asking this Court to do is to assess the merits of the appeals before the Federal Court of Appeal and the British Columbia Court of Appeal and decide whether a stay should be issued in one or another of those Courts if one were sought by Burnaby. I am in no position to make that assessment. In my view, the defendants' argument of prematurity must fail.

The Merits

77 On the merits, the defendants argue that the evidence advanced by the plaintiff does not establish a strong prima facie case or a serious question to be tried, and that even if this threshold is met, the balance of convenience weighs heavily in favour of dismissing the application.

78 It is the defendants' contention that the first step of the RJR-MacDonald test should be considered to be the higher threshold of a "strong prima facie case" because if the relief sought by Trans Mountain were granted, it would be dispositive of the case.

79 The defendants argue that the circumstances of this case fall within the exception to the general rule that the first step of an injunction does not generally involve much consideration of the merits. They rely on one of the two exceptions outlined in RJR-MacDonald as follows at 338:

... [W]hen the result of the interlocutory motion will in effect amount to a final determination of the action. This will be the case either when the right which the applicant seeks to protect can only be exercised immediately or not at all, or when the result of the application will impose such hardship on one party as to remove any potential benefit from proceeding to trial.

80 The defendants analogize this case to protests against logging in which the higher standard articulated in RJR-MacDonald usually applies because the injunctive relief sought usually has the effect of amounting to a final determination of the action. The defendants cite International Forest Products Ltd. v. Kern, 2000 BCSC 888 (B.C. S.C. [In Chambers]) at para. 41 and Relentless Energy Corp. v. Davis, 2004 BCSC 1492 (B.C. S.C.) at para. 13.

81 The plaintiff says whatever the threshold test — serious questions to be tried or significant prima facie case — it is met. The plaintiff submits that the evidence discloses a concerted and organized effort among the named defendants and others to deliberately obstruct and interfere with the mandated field studies in ways which support the torts alleged.

82 The actions and events at issue took place at three separate locations on the lands in question: at Barnet Marine Park, at the site designated as Borehole No. 1, and at the site designated as Borehole No. 2. Much of the plaintiff's evidence in relation to the events at Barnet Marine Park is set out in the affidavit of Carey Johannesson sworn October 30, 2014, and in the video and audio recordings of the events attached to the second affidavit of Leonard Nuttall sworn November 4, 2014.

83 In his affidavit, Mr. Johannesson describes being at Barnet Marine Park with two fallers and two security guards where he erected signs prohibiting entry from the proposed work area. The object of the work at that site was to cut lines through shrubs and bushes with chain-saws to enable geophone testing. As to the signs, he deposed as follows at paras. 80 and 81:

80. At approximately 10:11 am, we arrived at the Kask-Brothers parking lot. The Trans Mountain work crew began unloading equipment and proceeded up the path that leads to the work site. When we arrived, I erected four signs to delineate the work area. The signs each read: "TRANS MOUNTAIN KINDER MORGAN CANADA / NO ENTRY UNTIL FURTHER NOTICE: FIELD TESTING AREA UNDER ORDER OF THE NATIONAL ENERGY BOARD / FOR YOUR OWN SAFETY, PLEASE REMAIN OUTSIDE OF THE SIGNED-OFF AREA".

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81. The signs were located in a line along the path: one before the work, one after the work, and two in the middle. The lines that were to be cut were perpendicular to the path heading north from the path.

84 Two young women went to the work site saying that they were there to stop the work being done and saying "more aggressive" protestors were coming. Subsequently, about 20 protestors attended including Mr. Gold and Ms. Nissen. Mr. Johannesson described what happened next in paragraph 89 of his affidavit as follows:

89. The protesters verbally attacked us, and stood in the way of our work. The protesters obstructed us from carrying on with the brush clearing. They screamed and yelled at us, and blasted megaphones in our ears. They moved very close to us while doing so, making it very comfortable [sic], especially for my hearing. They told us that we should not be there, and that they would prevent us from conducting our work. I felt intimidated by the protesters and did not feel safe.

85 He deposed that the fallers did not continue their work because "although they were contracted to do the work" they "could not do so without a serious risk of injury to a number of the protestors" so they did not and the decision was made "to withdraw from the site".

86 Video and audiotapes that were taken during the events at the Barnet Marine Park area were included with the affidavit of Mr. Nuttall. The video and audio tapes confirm the tenor of the confrontation, including the protestors directing bullhorn sirens close to the ears of the Trans Mountain contractors and, using aggressive language. One unknown protestor was recorded as saying "Put the pipeline up your ass and turn the flow on high ..."

87 Both Ms. Nissen and Mr. Gold were recorded using aggressive language "referring to the Trans Mountain contractors as "assholes", telling them to "shove it [their] ass", referring to them as "scum bags", and asserting that the project "will not be completed."

88 At Boreholes No. 1 and 2, the evidence comes from the affidavits of Mr. Hurtado-Arias and Mr. Key. Mr. Key described going to Borehole No. 1 with other crew members and hearing two male voices say multiple times "everyone to the choke point". As they got to the location of the Borehole, he saw "at least 15 people there and more people coming". They were "blocking off the entrance from the trail to the partially cleared area at Borehole No. 1. One of the crew attempted to walk around the protestors but was physically blocked by someone stepping into his way. Mr. Key deposed:

There was no way we could safely access the site of Borehole No. 1 without either physically contacting the protestors or creating a more serious confrontation than already existed. There was no ability for us to safely erect the signs ... and we gave up trying.

89 As they walked back, many people from the site, were yelling at them, one person referring to them as "Nazis".

90 As they returned to where their Jeep was parked, they saw that there was a man who was lying under their vehicle making it impossible to use. They were also blocked by another man from attempting to put their equipment into the vehicle. They then left on foot.

91 Subsequently, Mr. Key went to Borehole No. 2. He described there being 30 to 40 people there with tents and vehicles parked in and around Borehole No. 2. In his affidavit Mr. Key deposed that the site "was completely surrounded by vehicles and protestors" and "[t]here was no opportunity for anyone from Trans Mountain to access the actual location of Borehole No. 2."

92 Mr. Key attached pictures of what he described at Borehole No. 1 and Borehole No. 2 and at the Jeep to his affidavit.

93 As to the involvement of Mr. Collis, Mr. Dutton and Ms. Quarmby, much of the evidence comes from the affidavit of Mr. Johannesson. With respect to Mr. Collis, the second affidavit of Leonard Nuttall contains a video of an interview of him conducted on October 29, 2014, and a transcript of that video. In that interview, Mr. Collis acknowledges that

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"when Kinder Morgan workers tried to come into the clearing at Borehole Site No. 1 down in the forest, activists met them there and chased them off ..."

94 Mr. Collis also characterized what was happening as "a cat and mouse game all afternoon chasing each other around. Kinder Morgan trying to find places they can work and the caretakers trying to find Kinder Morgan and stop what they were doing." Mr. Collis acknowledged he is part of the group called "Caretakers of Burnaby Mountain" whose aim "is to not allow the pipeline project to go ahead whatsoever." He acknowledged that other groups were "pursuing legal means of trying to stop this project ... and "[s]o in some ways our role has become a delay tactic how we can slow them down."

95 In an earlier publication, Mr. Collis was reported to have said "people are here and awaiting Kinder Morgan with the intention of being in the way to prevent them from doing their work." In another article he is reported to have said Kinder Morgan workers will have to go through his groups "band of citizen rangers" and that their intent is to be in the way. He was quoted as saying "As long as we're organized we will stand in their way."

96 So far as Mr. Dutton is concerned, the evidence of his involvement personally and as the representative of Burnaby Residents Opposing Kinder Morgan Expansion (BROKE), comes from postings on the BROKE website and a newspaper article in which he was quoted as saying:

We have been mobilizing and training people for the last three weeks or so and we are ready. People will be present on the mountain occupying the conservation area, as they have a right, and they will be having picnics instead of pipelines.

He also referred to a telephone network "to advise people if Kinder Morgan starts to do their work."

97 In the case of Ms. Quarmby, the evidence of her involvement primarily consists of statements which she was reported to have made concerning being willing to be arrested and to "put her body in the way to stop Trans Mountain from building the pipeline across B.C."

98 The defendants Alan Dutton, Adam Gold and Mia Nissen each filed affidavits on this application.

99 In his affidavit, Mr. Gold deposed that he did not interfere or attempt to interfere with "any person who looked like they were working". He acknowledged that he expressed "highly critical views of Kinder Morgan" and those who work for it. He deposed that he did not think that Mr. Johannesson was intimidated by the protestors but "seemed to be mildly amused". He denied obstructing anyone, screaming at anyone or touching anyone. He agreed he used a megaphone "but ... did not have the volume high enough to damage anybody's hearing".

100 He referenced Kinder Morgan's "environmental track record".

101 Ms. Nissen deposed similarly to Mr. Gold that she did nothing to interfere with anybody working. She acknowledged using the "F word" once or twice. She denied screaming but agreed that she yelled.

102 Mr. Dutton attested to his background and to that of the organization BROKE of which he is a representative. He described his involvement with the ongoing processes between the City of Burnaby and Trans Mountain and his involvement in holding rallies against the project.

103 As to his involvement with the events at issue in this application, he deposed as follows at paragraphs 40 and 41:

40. On October 28, 2014 there were rumours that a small group of people had erected a barrier and at BH1 and BH2. I attended and took pictures. The demonstrators appeared tense and I later spoke with several members of other groups working with the demonstrators about the situation.

Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 18 Trans Mountain Pipeline ULC v. Gold, 2014 BCSC 2133, 2014 CarswellBC 3373 2014 BCSC 2133, 2014 CarswellBC 3373, [2015] B.C.W.L.D. 297...

41. On or about October 29, 2014 I attended a demonstration near BH2 and at the base of Centennial Way. There were a great number of media and demonstrators that filled the road. I spoke to several officers at the site about concerns about traffic and safety. There was an incident at BH1 and I visited that area. When I arrived there was a report that a Kinder Morgan crew had attempted to begin work but were warned off. I was not present at the time that Kinder Morgan attempted to resume clear cutting and did not witness any incident. There were possibly 20-30 people present with one RCMP officer in attendance when I arrived. There was some yelling by the clearing, but I heard persons cautioning others to be calm.

104 The defendants raise a number of issues with respect to the first step of the RJR-MacDonald test, that is, whether there is a serious question to be tried or a strong prima facie case.

105 The defendants say that the submissions with respect to NEB being the proper forum apply equally to the question whether there is a strong prima facie case, relying on the judgment of Brown J. in Burnaby (City) at para. 35 where she said as follows:

I have doubt in this case that there is a serious question to be tried because there is another forum in which the matter before me can be determined. Indeed, as I have set out above, Burnaby has already engaged that forum and can raise this very question before that forum.

106 The defendants also say that Trans Mountain has no prima facie claim in trespass. They rely on the Trespass Act, R.S.B.C. 1996, c. 462 and the Occupiers Liability Act, R.S.B.C. 1996, c. 337 to argue that the definition of the term "occupier" in those Acts precludes either the plaintiff or the NEB from assuming the status of an occupier of the property. They say, in the result, the plaintiff cannot claim to be an "authorized person" under the Trespass Act "to exercise a power or duty", interference with which will constitute a trespass.

107 The defendants argue that the plaintiff's rights under s. 73(a) of the NEBA do not correlate to any sort of proprietorial right in the land necessary to justify a claim in trespass. The defendants say that this is important because a part of the relief sought by the plaintiff "depends on a finding that the respondents have committed the offence of trespass".

108 As to the tort of nuisance, the defendants argue similarly that, in the case of private nuisance a claim will fail where there is no interest in land or at least a profit á prendre. The holder of a mere licence cannot maintain an action for private nuisance.

109 Insofar as public nuisance is concerned, the defendants rely on the judgment of the SCC in Ryan v. Victoria (City), [1999] 1 S.C.R. 201, 168 D.L.R. (4th) 513 (S.C.C.), and submit that the tort is not made out where the activity at question affects only the plaintiff's private interests. They contend that the activity must affect the rights of the public generally and the plaintiff specifically in order to engage liability under the rubric of public nuisance.

110 The defendants say that the evidence does not establish the torts of assault or intimidation. They submit that the evidence falls short of establishing the essential elements of those torts and that further, the defendants are simply engaging their right to freedom of expression with respect to what they describe as "the defining issue of the age".

111 Similarly, with respect to the torts of interference with contractual relations and conspiracy, the defendants assert that the evidence manifestly falls short of establishing the necessary elements of those torts. The defendants emphasize that their activities and utterances, including building the structures impeding Trans Mountain's access to Borehole No. 2, were, and are, all expressions which fall within the legitimate bounds of free speech.

Discussion and Conclusion

112 In my view, the plaintiff has, through their evidence, established a strong prima facie case with respect to at least some of the torts which have been pleaded. While I accept that the tort of trespass may be elusive given the uncertainty

Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 19 Trans Mountain Pipeline ULC v. Gold, 2014 BCSC 2133, 2014 CarswellBC 3373 2014 BCSC 2133, 2014 CarswellBC 3373, [2015] B.C.W.L.D. 297... of the plaintiff's status as an occupier or authorized person, there is no doubt that the plaintiff has the express lawful authority to access those parts of the land from which its representatives have been impeded and to conduct activities in respect of which its representatives have been prevented. I do not regard the jurisdictional issue as having an effect on the strength of the case for the reasons given.

113 In my view, on the evidence advanced, a court could conclude that the torts of assault and intimidation are made out, given the misuse of the bullhorns, when coupled with the aggressive and threatening language, and the general and specific efforts to physically block the plaintiff's representatives from accessing their work sites. In other words, the plaintiff's representatives were faced with either physical confrontation or retreat. They wisely chose the latter.

114 Similarly, given the utterance of Mr. Collis and to a lesser extent Mr. Dutton and Ms. Quarmby, a court reasonably could conclude that there was a concerted and coordinated effort to thwart the plaintiff's representatives from performing their duties on behalf of the plaintiff through the use of the unlawful means which are pleaded. In my view, the circumstances at bar reach the level of a strong prima facie case in view of all of the evidence.

115 It is of course important to consider the defendants' assertions and submissions that what they were engaging in was freedom of expression to address an issue of critical importance. The courts must be careful not to act in ways that dissuade concerned and engaged citizens from expressing their opposition to activities which they view as destructive of the social or political good.

116 The dilemma that the courts face in distinguishing between legitimate protest involving freedom of expression and unlawful activity was expressed in MacMillan Bloedel Ltd. v. Simpson (1994), 96 B.C.L.R. (2d) 201, 50 A.C.W.S. (3d) 663 (B.C. C.A.), aff'd, [1996] 2 S.C.R. 1048, 137 D.L.R. (4th) 633 (S.C.C.) at para. 28 where the majority said as follows:

Undoubtedly, grave problems arise in situations where the line between the right of public protest and right to use and enjoy private property is difficult to define. The greater the cause of public dissent, and the greater the belief in the cause, the more dangerous it is for civil courts to get involved. But in the end, realizing the danger of appearing to enter the public debate, the courts cannot shirk their duty to prevent irreparable harm to private persons who have no other effective recourse but to come to the civil courts for help. Lessons have been learned in respect of the use of labour injunctions. Those lessons will be clearly in mind as the courts are asked to intervene to protect private interests which are threatened in the course of legitimate public dissent.

117 I am satisfied that as much as the right of public dissent must be carefully protected, what is at issue in the present case goes beyond that and engages a strong prima facie case of liability for tortious behaviour.

118 As to the question of irreparable harm, I am satisfied that the failure to grant the injunction would cause the plaintiff irreparable harm. The plaintiff has advanced essentially uncontradicted evidence that the delays occasioned by the activities at issue have and will continue to cause the substantial costs and potential losses of revenues which are not recoverable. The harm although primarily economic, is thus, nonetheless, irreparable.

119 I am not satisfied that to grant the injunction would cause irreparable harm to the defendants. While I accept that the NEB ruling in Order 40 does not exhaustively define the work to be done, and different iterations of what that work constitutes have been advanced by the plaintiff at different times, what remains to be done relates to geophysical testing, including geophone data collection at the Barnet Marine Park, geotechnical testing including borehole drilling (and associated site preparation at Borehole No. 1 and Borehole No. 2), and soil testing and archaeological surveying on Eastland Drive, Gagliardi Way and Stoney Creek Park.

120 Some aspects of the work to be done are temporary and others are "minimally intrusive". As I understand it, a number of trees have been taken down already at Borehole No. 1, whereas at Borehole No. 2, there is no need for significant clearing. In my view, the situation which confronts me in terms of irreparable harm to the defendants is akin to that which confronted Brown J. in Burnaby (City) where she held at para. 49 as follows:

Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 20 Trans Mountain Pipeline ULC v. Gold, 2014 BCSC 2133, 2014 CarswellBC 3373 2014 BCSC 2133, 2014 CarswellBC 3373, [2015] B.C.W.L.D. 297...

[49] I am not persuaded that felling the limited number of trees that Trans Mountain has felled and proposes to fell within a relatively small area of the Burnaby Mountain Conservation Area would constitute irreparable harm. Moreover, as Trans Mountain submitted and the Act provides in s. 75, Trans Mountain is required to remediate any damage that it causes to the area. I am not satisfied that the investigations to be conducted by Trans Mountain constitute irreparable harm as contemplated in RJR-MacDonald as to warrant an injunction.

121 My view that what is at stake in this injunction does not cause irreparable harm to the defendants is bolstered by the fact that the City of Burnaby which is the occupier and ultimate custodian of the lands has not yet brought an application for a stay to suspend the balance of Trans Mountain's investigations, notwithstanding that they have brought an appeal from the NEB's Order 40. Although Burnaby has indicated that it will bring such an application which will affect prospective work, despite being faced with the imminent conclusion of the remaining investigative work under Order 40, it has not yet done so.

122 I therefore find that the balance of convenience favours the plaintiff. What the plaintiff faces is the prospect of ongoing cost and damages which are not likely to be recovered. In my view, the countervailing interests of the defendants relate not to the relatively minor prospective harm from the plaintiff completing its investigation, but the much larger issue which is yet to be engaged and which is not implicated by this application.

123 On balance therefore, I am satisfied that the injunction sought by the plaintiff should be granted.

124 As to the terms, I am alive to the defendants' submission that the plaintiff, by carving out worksites for themselves within the terms of the injunction are seeking a proprietorial right which is beyond what was granted to them under s. 73 of the NEBA and to which they would not otherwise be entitled. I conclude, however, that what is sought by the plaintiff is not in the nature of a proprietorial right rather that it is a limited and temporary right to enforce the authorization which they have been given to complete the required investigation. I will thus grant the order in the terms sought. The defendants and all others having notice of the order will have until 4:00 p.m. on November 17th, 2014 to remove those things contemplated in paragraph 2 of the draft order. Application granted.

Footnotes * A corrigendum issed by the court on August 5, 2015 has been incorporated herein.

Sworn before me this 26th day of October A.D. 2017

CO S IN AND FOR BRITISH COLUMBIA

SHAI{NON DAVIDSON Barrister & Solicitor Osler, Hoskin & Harcourt LLP Suite 1700, Guinness Tower 1055 West Hasting Street Vancouver,Bc V6E2E9 Telephone: 604.692.27 54 FORM 301 Rule 301 Court File No:

FEDERAL COURT OF APPEAL

CITY OF BURNABY

Applicant

TRANS MOUNTAIN PIPELINE ULC

Respondent

NOTICE OF APPLICATION

TO THE RESPONDENT:

A PROCEEDING HAS BEEN COMMENCED by the applicants. The relief claimed by the applicants appears on the following page.

THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the applicants. The applicants request that this application be heard at Vancouver, B.C.

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must prepare a notice of appearance in Form 305 prescribed by the Federal Courts Rules and serve it on the applicant's solicitor, or where the applicants are self-represented, on the applicants, WITHIN 10 DAYS after being served with this notice of application.

Copies of the Federal Courts Rules, information concerning the local offices of the Court and other necessary information may be obtained on request to the Admillistrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.

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IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO O~llGINAL SIGNED BY FRANK FEDORAK June 17, 2016 A SIGNE L'ORIGINAL Issued by:------(Registry Officer)

Address of local office:

Pacific Centre PO Box 10065 701 West Georgia Street Vancouver, BC V7Y 1B6 TO:

Trans Mountain Pipeline ULC c/o Osler, Hoskin & Harcourt LLP Suite 2500, 450 - I st Street SW Calgary, AB T2P 5Hl Facsimile 403-260-7024 Attention: Maureen Killoran, Q.C. 1HEREBY c_~at the ~bov~ document is~ true copy of the ori~iil~ut of/ filed mthe Court on the - day of rjG~ 1 7 2016 A.D. 20 -

Dated this -day of .~ 1 7 2016 20- ~k'

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APPLJCA TION

This is an application for judicial review in respect of a report and recommendation dated May 19, 2016, issued by the National Energy Board (the "Board") in accordance with its authority under the National Energy Board Act, R.S.C. 1985, c. N-7 (the "NEB Act") and the Canadian Environmental Assessment Act, 2012, SC 2012, c 19 (the "CEAA, 2012") recommending that the Governor in Council approve the Project and direct the Board to issue the necessary certificate of public convenience and necessity and amended certificates of public convenience and necessity in respect of the Trans Mountain Pipeline Expansion Project (the "Determination").

The applicant makes application for:

(a) An order quashing or setting aside the Determination;

(b) An order that the Determination fails to comply with the NEB Act, the CEAA, 2012, or both, and is therefore invalid or unlawful in whole or iri part;

(c) A declaration that the Board's recommendation that the Project is in the public interest is unreasonable, unlawful, and invalid in whole or in part;

(d) A declaration that the Board breached the principles of procedural fairness and/or natural justice;

(e) An order referring the Determination back to the Board for a rehearing in accordance with the principles of procedural fairness and natural justice;

(f) An order prohibiting or restraining the Board from issuing or recommending the issuance of a certificate of public convenience and necessity in respect of the Project until the Board has:

(i) Complied with the NEB Act and the CEAA, 2012;

(ii) Properly assessed Project impacts;

(iii) Considered the alternative means and locations of carrying out the Project that are technically and economically feasible and the environmental effects of any such alternative means;

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(iv) Considered the non-economic impacts of the Project and balanced those impacts against the economic impacts of the Project;

(v) Reconsidered its determination on whether or not the Project is in the public interest with regard to the above factors listed in (i), (ii), (iii) and (iv);

(g) Costs; and

(h) Such other relief as this Honourable Court may deem appropriate.

The grounds for the application are:

A. Overview

1. On December 16, 2013, Trans Mountain Pipeline ULC ("Trans Mountain") applied to the National Energy Board (the "Board") for approval of the expansion of an existing oil pipeline between Edmonton, Alberta and Burnaby, British Columbia, which would include the expansion of a tank farm and marine terminal located in Burnaby (the "Project").

· 2. From the outset, the City of Burnaby ("Burnaby") expressed very serious concerns regarding the proposed Project, particularly its implications for the health and safety of Burnaby residents and its impacts on the natural environment.

3. Burnaby participated to the extent possible in the Board's hearing in relation to the Project, including by submitting written information requests to Trans Mountain and filing evidence on issues of concern to Burnaby. The Board refused to allow Burnaby to test Trans Mountain's evidence by cross-examination, and denied the majority of Burnaby's requests for full and adequate responses to its information requests.

4. On May 19·, 2016, the Board issued a report recommending that the Governor in Council issue regulatory approval in respect of the Project on the basis that the Project is in the public interest.

5. In determining that the Project is in the public interest and recommending the approval of the Project, the Board erred in law, including by:

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(a) Unreasonably and unlawfully failing to properly assess the Project impacts;

(b) Unreasonably and unlawfully failing to consider the alternative means of carrying out the Project;

(d) Breaching the principles of natural justice; and

(e) Breaching the duty of fairness owed to Burnaby.

6. The Board's recommendatio.n and the report on which it is based are unreasonable and unlawful and must be set aside.

B. Background

The Project

7. The Project consists of the expansion of the existing Trans Mountain oil pipeline and related facilities so as to roughly triple capacity from a cmTent maximum capacity of 300,000 banels per day to 890,000 barrels per day. To achieve this capacity increase, Trans Mountain proposes to twin the pipeline by adding a second pipe at vaiious points along the pipeline route. Trans Mountain also proposes to construct new and modified facilities, including:

(a) A new pipeline along a new route to the Burnaby Terminal;

(b) An expansion of the Burnaby Terminal, including 13 new storage tanks and one replacement tank;

(c) An expansion of the Westridge Marine Terminal including a new dock complex with three new berths to accommodate an increase in tanker traffic from approximately 5 to 34 vessels per month; and

(d) Two new delivery pipelines connecting the Burnaby Terminal to the Westridge Marine Terminal.

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8. The proposed pipeline route through Burnaby is almost entirely new, and does not follow the existing pipeline corridor.

9. The proposed pipeline route would cause harm to Burnaby 1ands. The Board did not assess alternative routes and terminal locations.

10. Subject to required approvals, Trans Mountain plans to commence construction in September 2017.

The City of Burnaby

11. Burnaby is the third largest city in British Columbia with a population of over 223,000 people. The City is currently represented by an elected council of eight and a mayor who has been re-elected for five consecutive terms.

12. Burnaby has changed markedly since 1952, when the original pipeline and terminals were constructed. At that time, Burnaby was a suburban/rural area with a population of roughly one-quarter of the present population. The Burnaby of today is a densely populated urban area with a diverse economy.

13. In addition to a section of the main pipeline, the Burnaby Terminal, the Westridge Marine Terminal and the proposed new delivery lines connect those two terminals are within the boundaries of Burnaby.

14. Burnaby and its residents stand to be directly affected by the Project and are extremely concerned about the implications of the Project for Burnaby, its residents and the natural environment.

The Hearing

15. On December 16, 2013, Trans Mountain applied to the Board for a certificate of public convenience and necessity and related approvals for the proposed Project, pursuant to the NEB Act. This included the submission of an application for a certificate of publ.ic convenience and necessity (the "Application") purporting to contain the information required under the NEB Act and the CEAA, 2012.

16. On April 2, 2014, the Board issued a hearing order that set out the steps and deadlines to be followed during the Application assessment and public hearing process (the

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"Hearing"). The hearing order also attached the list of issues to be considered in the hearing, which excluded from consideration the environmental and socio-economic effects associated with upstream activities including the development of oil sands and the downstream uses of the oil to be transported by the pipeline.

17. On Aptil 2, 2014, the Board determined the factors and the scope of the factors to be considered in the environmental assessment for the Project. Pursuant to that determination, under the CEAA, 2012, the Board would not consider the potential environmental and socio-economic effects of marine shipping activities that would result from the proposed Project, including the potential effects of accidents or malfunctions that may occur, though it would consider those issues under the NEB Act.

18. Burnaby participated in the Hearing as an intervenor. Burnaby's participation included providing written evidence, filing written information requests of Trans Mountain and related motions, filing written argument and making oral summary argument.

19. The Hearing process determined by the Board did not allow for a full oral hearing or permit Burnaby or any other intervenor or party to test any of Trans Mountain's evidence by cross-examination.

20. The Hearing process provided for a written information request process by which intervenors including Burnaby were invited to submit written questions to Trans Mountain, which then had the opportunity to carefully craft responses or, as was frequently the case with respect to Burnaby's requests, deflect or refuse to respond, with the comfort of the knowledge that the responses provided would not be subject to cross examination.

21. Burnaby's participation in the Hearing did not in any way assuage or address its concerns in relation the Project. On the contrary, Burnaby's participation in the Hearing operated to confirm and reinforce the seriousness of Burnaby's concerns with the Project.

The Board's Mandate

22. Under the NEB Act, in making its recommendation as to whether a certificate of public convenience and necessity should be issued in respect of the Project, the Board was to

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have regard to, among other factors, any public interest that may be affected by the Project.

23. Under the NEB Act, the Board was required to undertake an environmental assessment of the Project in accordance with the CEAA, 2012, which was to be set out in the report.

The Report

24. On May 19, 2016, the Board released its report in respect of the Application (the "Report). In the Report, the Board found that the Project is in Canada's public foterest and recmnmended that the Governor in Council approve the Project and direct the Board to issue the necessary certificate of public convenience and necessity and amended certificates of public convenience and necessity.

C. Errors in Law

25. For the reasons set out below, the Board's Determination that the project was in the "public interest" and to recommend the issuance of a certificate of public convenience and necessity in respect of the Project was unreasonable and unlawful.

Failure to Properly Assess Project Impacts

26. The Board unreasonably failed to consider or address in any meaningful way a number of critical substantive issues in relation.to the Project.

27. In the Report, the Board expressly or implied recognized that the record did not provide sufficient information for the Board to address a number of important issues in relation to

Project impacts~ Rather than reject the Application or require that Trans Mountain provide the necessary information to enable the Board to address the issue prior to deciding whether to recommend the issuance of a certificate of public convenience and necessity, the Board dealt with the matter by issuing one or more "conditions" directed at the issue.

Route through Burnaby Mountain

28. Trans Mountain originally proposed that the pipeline corridor for the two new delivery lines connecting the Burnaby Terminal to the Westridge Marine Terminal would not

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fo11ow the existing right-of-way but rather would follow a new route beneath city streets adjacent to Burnaby Mountain (the "street option").

29. On May 14, 2014, in response to an infonnation request from the Board, Trans Mountain indicated that its preferred .route for the new delivery lines was a new route through Burnaby Mountain (the "tunnel option"). Trans Mountain did not provide any evidence in its response as to the basis for this proposed change.

30. In argument before the Board, Burnaby observed that Trans Mountain's geotechnical investigation of the tunnel option was insufficient to assess the feasibility of the tunnel option.

31. In the Report, the Board conceded that it did not have sufficient information to assess the tunnel option, and, in particular, that:

(a) There is no evidence regarding the use of the concrete or grout-filled tunnel installation method for other hydrocarbon pipelines. in Canada;

(b) Voids or cracks could form in the grout; and

(c) Damage to the pipe or coating may occur dming installation of the pipelines or grouting, and that there will be limited accessibility for future maintenance and repairs.

32. Rather than require Trans Mountain to address these issues before the Board made a recommendation, the Board proposed to address these matters through conditions requiring Trans Mountain to file with the Board, at least 6 months prior to commencing Burnaby Mountain tunnel construction activities, information regarding tunnel location, construction methods, geotechnical and geophysical feasibility, leak detection, backfilling and cathodic protection (Conditions 26, 27, 28 and 143).

33. The Board therefore failed to consider risks in relation to the tunnel option in its assessment of the public interest.

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Burnaby Terminal Risk Assessment

34. Burnaby provided evidence that the Project presented serious and unacceptable safety risks to the neighbourhoods in proximity to the Burnaby Terminal as a result of fire, explosion and boil-over.

35. The Board recognized Burnaby's concerns in relation to accidents at the Burnaby Terminal. The Board observed that Trans Mountain claimed that boil-over events are unlikely but that Trans Mountain did not quantify the risks through a rigorous analysis.

36. The Board declined to assess these risks itself or require further information from Trans Mountain prior to making a recommendation. Instead, the Board imposed conditions requiring Trans Mountain to file with the Board for approval a report demonstrating that the secondary containment system would be capable of draining large spills away from the Burnaby Terminal and has the capacity to contain a spill from a multiple-tank rupture scenario, a report to revise the Burnaby Terminal risk assessment, and a final risk assessment for the Burnaby Terminal (Conditions 22, 24, 129).

37. The Board therefore failed to consider the fire and safety risks to the Burnaby neighborhoods in its assessment of the public interest.

38. The Board also acknowledged Burnaby's concerns with the preliminary nature of the geotechnical design evidence in relation to the Burnaby Terminal provided by Trans Mountain. The Board considered that more extensive geotechnical '"'.Ork will be completed for the engineering and design phase of the Project.

39. The Board therefore failed to consider the geotechnical risks in its assessment of the public interest.

West.ridge Terminal Risk Assessment

40. Burnaby provided evidence that, in addition to spill risks, the West.ridge Marine Terminal poses human health risks from operational air emissions, fire risk and geotechnical hazards, none of which were adequately assessed by Trans Mountain.

41. The Board declined to assess these risks or require Trans Mountain to do so prior to the Board issuing a recommendation in relation to the Project. Rather, the Board imposed conditions requiring Trans Mountain to file a final risk assessment for the West.ridge

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Marine Terminal for approval, provide a final preliminary geotechnical report for the

design of the offshore facilities, provide a pr~liminary geotechnical report for the onshore facilities prior to the commencement of construction, and demonstrate the adequacy of the fire protection system .to suppress fires for the scenarios identified in the final risk assessment (Conditions 33, 34, 83, 127, 129).

42. The Board therefore failed to consider the human health iisks posed by the Westridge Marine Terminal in its assessment of the public interest.

Emergency Fire Response

43. The Board recognized the need for adequate resources to respond in the case of a fire at Project infrastructure, particularly the Burnaby Terminal, and accepted that the 6 to 12 . hour response time proposed by Trans Mountain for industrial firefighting contractors to arrive on site was inadequate.

44. The Board responded to this risk by imposing a condition requiring Trans Mountain to complete a needs assessment with respect to the development of appropriate firefighting capacity for a safe, timely, and effective response to a fire at the Westridge Marine and Burnaby Terminals (Condition 118). The Board also imposed a condition requiring Trans Mountain to confirm, 30 days prior to commencing operations at the terminals, that appropriate firefighting capacity is in place (Condition 138). Neither condition requires any oversight or assessment by the Board.

45. The Board therefore failed to consider the firefighting capacity and firefighting risks in its assessment of the public interest.

Evacuation

46. The Board indicated that the generic evacuation plan proposed by Trans Mountain could not address all scenarios at all facilities. The Board accepted that Trans Mountain is in the best position to understand the facilities' hazards, and how those hazards will impact the public. The Board imposed a condition requiring Trans Mountain to file with the Board an evacuation plan six months before commencing operations at the terminals (Condition 123). This condition does not require any oversight or assessment by the Board.

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47. The Board therefore failed to consider the human health and safety risks and evacuation difficulties in its assessment of the public interest.

Conditions are Inadequate

48. As the conditions imposed by the Board indic~te, the Board recommended approval of the Project without the ability to understand or assess many of the risks posed by the Project.

49. The conditions imposed by the Board typically require Trans Mountain to collect and submit additional information either prior to or subsequent to construction of Project. While some of the conditions require the Board to approve the supplementary information provided by Trans Mountain, many conditions simply require that Trans Mountain deliver a report; they do not provide the Board with any obligation to review or assess the adequacy of the information provided. In any event, regardless of the content of the information provided_by Trans Mountain, the Board has no authority to reconsider its recommendation to approve the Project.

50. The conditions imposed by the Board are completely ineffective as they do not require or allow the Board to revisit its determination to recommend approval of the Project despite that many of the matters that the Board has dealt with by way of conditions are central to the question of whether the Project is in the public interest.

51. By deferring certain issues to conditions, the Board unreasonably and unlawfully abdicated its responsibility to consider issues that are directly related to the Project and to assess whether the Project is in the public interest as required under the NEB Act.

Failure to Assess Alternatives

52. Pursuant to paragraph 19(1)(g) of the CEAA, 2012, the Board was required to consider the alternative means of carrying out the Project and the environmental effects of those alternatives. Whether there are alternative means of carrying out the Project and how those alternatives compare with the proposed means is a critical issue in the consideration of whether the Project is in the public interest under the NEB Act.

53. Trans Mountain's Application provided no evidence in relation to alternative routes and locations for portions of the Project including the Burnaby Terminal and the Westridge

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Marine Terminal. In response to an information request from Burnaby, Trans Mountain indicated that it had considered two alternative terminus locations but rejected them, asserting that they would be more costly and cause greater adverse environment impacts. Trans Mountain did not provide Burnaby or the Board with the analysis done in relation to these alternatives, if any, or any evidence that might support the conclusions reached. The only evidence before the Board in relation to these alternatives was Trans Mountain's bald assertion.

54. In the absence of any evidence as to the alternative routes and locations for the terminus of the Project, the Board could not and did not consider those alternatives and how they compare to the proposed means of carrying out the Project.

55. The Board's failure to consider alternative routes and locations for the Project terminus or, at the very least, to ensure that Trans Mountain had done so, was unreasonable and contrary to paragraph 19(1 )(g) of the CEAA, 2012.

Failure to Consider Non-economic Interests

56. The Board unreasonably failed to justify its conclusion that the Project is in the public interest.

57. In order to determine whether the Project is in the public interest, the Board had a duty to weigh the Project's benefits against its costs.

58. The Board failed to balance the costs and benefits of the Project in a reasonable fashion. The Board took a broad view of the Project's benefits, including direct and indirect

benefits to be enjoyed by the energy industry, but to~k a narrow view of the Project's costs, excluding consideration of upstream effects such as impacts on greenhouse gas emissions resulting from increased oil and bitumen production caused by the Project.

59. In the result, the Board unreasonably deferred to Trans Mountain's assertion that the Project's economic benefits outweigh its costs without regard to the evidence and without undertaking the important balancing exercise mandated by the NEB Act.

01234316-2 - 14 -

Breach of the Duty of Fairness

60. The Determination profoundly affects the rights and interests of Burnaby and its citizens. In the circumstances, the Board owed a duty of fairness to Burnaby in relation to the Determination.

61. The Board breached the principles of natural justice and the duty of procedural fairness owed to Burnaby, including by:

(a) Failing to hold an oral hearing;

(b) Failing to provide Burnaby with an opp01tunity to test Trans Mountain's evidence by cross-examination or otherwise;

(c) Failing to require Trans Mountain to respond to Burnaby's written· information requests and denying Burnaby motions to compel further and better responses to written information requests; and

(d) Failing to provide sufficient reasons with respect to issues including:

(i) Alternative means of carrying out the Project;

(ii) Risks related to fire and spills (including seismic risk);

(iii) Air emissions;

(iv) Suitability of the Burnaby Mountain tunnel;

(v) Protection of municipal water sources;

(vi) Wildlife species at risk and rare plant protection; and

(vii) Whether and on what basis the Project is in the public interest.

Summary

62. For the reasons set out above, in making the Determination, the Board:

(a) Unreasonably and unlawfully failed to properly assess the Project impacts;

01234316-2 - 15 -

(b) Unreasonably and in breach of paragraph 19(l)(g) of the CEAA, 2012 failed to consider the alternative means of carrying out the Project;

(d) Breached the principles of natural justice and the duty of fairness owed to Burnaby.

63. Burnaby 1'eiies on the NEB Act, CEAA, 2012, ss. 18.1 and 28(1 )(f) of the Federal Courts Act, R.S.C., 1985, c. F-7 and the Federal Courts Rules.

This application will be suppo11ed by the following material:

1. Affidavit of Dipak Dattani; and

2. Such further and add_itional materials as counsel may advise and the Court may allow.

June 17, 2016

Ratcliff & Company LLP Suite 500- 221 West Esplanade North Vancouver, BC V7M 3J3 Tel: 604-988-5201 Fax: 604-988-1452

SOR/2004-283, ss. 35, 38.

01234316-2 ((7)' THIS IS EXHIBIT Referred to in the Affidavit of Michael Davies Sworn before me this 26th day of October A.D.2017

OATHS IN AND FOR BRITISH COLUMBIA

SHANNON DAVIDSON Barrister & Solicitor Osler, Hoskin & Harcourt LLP Suite 1700, Guinness Tower 1055 West Hasting Street Vancouver,BC Y6E2E9 Telephone : 604.692.27 54 Home  News  News Releases  Trans Mountain Pipeline Expansion Project Ministerial Panel Named

News Release

 Share this page Trans Mountain Pipeline Expansion Project Ministerial Panel Named

May 17, 2016 Ottawa Natural Resources Canada

The Honourable Jim Carr, Minister of Natural Resources, today announced that Ms. Kim Baird, Mr. Tony Penikett and Dr. Annette Trimbee will comprise the Trans Mountain Pipeline Expansion Project Ministerial Panel.

The panel is tasked with engaging communities and local Indigenous groups and reviewing feedback that will be provided online regarding the project and project-related issues. The panel’s work starts in June and concludes in November with a report to Minister Carr, which will be made public.

The Trans Mountain Pipeline Expansion project (TMX) panel engagement process and report complements the National Energy Board’s (NEB) recommendation report and Environment and Climate Change Canada’s assessment of upstream greenhouse gas emissions, which was added to the Government’s TMX decision-making process in January as part of the announcement of interim principles for major projects. In addition to the panel’s engagement, Natural Resources Canada will undertake additional Crown consultations with Indigenous peoples. Both the NEB’s recommendation report and Environment and Climate Change Canada’s assessment of upstream greenhouse gas emissions are due by May 20, 2016.

As the Government advances plans for NEB modernization, it has implemented an interim approach with five principles that allows Canadians to provide additional information and views relevant to the proposed project in advance of the Government’s final decision in December 2016. The five interim principles are:

1. No project proponent will be asked to return to the starting line — project reviews will continue within the current legislative framework and in accordance with treaty provisions, under the auspices of relevant responsible authorities and Northern regulatory boards; 2. Decisions will be based on science, traditional knowledge of Indigenous peoples and other relevant evidence; 3. The views of the public and affected communities will be sought and considered; 4. Indigenous peoples will be meaningfully consulted, and where appropriate, impacts on their rights and interests will be accommodated; and 5. Direct and upstream greenhouse gas emissions linked to the projects under review will be assessed. Quotes

“The panel members reflect the experience, perspective and understanding of local issues and relationships needed to advise the Government as we advance the Trans Mountain Pipeline Expansion Project to a final decision in December. Ms. Baird, Mr. Penikett and Dr. Trimbee form a capable team charged with discussing important and difficult issues with Canadians affected by this project. I encourage communities, Indigenous groups and citizens to engage the panel and let their views on the project be known so the Government can make decisions that reflect the interests and needs of Canadians.”

Jim Carr Canada’s Minister of Natural Resources

Associated Links • NEB Project website • Panel Member Biographies • Panel Terms of Reference

Contacts

Media may contact: Alexandre Deslongchamps Press Secretary Office of the Minister of Natural Resources 343-292-6837

Media Relations Natural Resources Canada Ottawa 343-292-6100

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IN AND FOR BRITISH COLUMBIA

SIIANNON DAVIDSON Barrister & Solicitor Osler, Hoskin & Harcourt LLP Suite 1700, Guinness Tower 1055 West Hasting Street Vancouver,Bc V6E2E9 Telephone : 604.692.27 54 Home  News  Backgrounders  Interim Measures for Pipeline Reviews

Backgrounder

 Share this page Interim Measures for Pipeline Reviews

The Government of Canada has introduced five principles that will guide its decision-making on major natural resource projects while the Government undertakes a review of environmental assessment processes. For two significant projects currently under review by the National Energy Board (NEB), the Trans Mountain Expansion project and Energy East Pipeline project, the Government of Canada will immediately take steps to ensure consistency with these principles.

Trans Mountain Expansion Project The Government of Canada will:

• Undertake deeper consultations with Indigenous peoples and provide funding to support participation in these consultations; • Assess the upstream greenhouse gas emissions associated with this project and make this information public; and, • Appoint a Ministerial Representative to engage communities, including Indigenous communities potentially affected by the project, to seek their views and report back to the Minister of Natural Resources.

To create space for these measures, the Minister of Natural Resources intends to seek an extension to the legislated time limit for the Government’s decision by four months (to seven months in total), extending the date from August 2016 to December 2016.

Energy East Pipeline The Government of Canada will:

• Undertake deeper consultations with Indigenous peoples potentially affected by the project and provide funding to support these consultations; • Help facilitate expanded public input into the National Energy Board review process, including public and community engagement activities. The Minister of Natural Resources intends to recommend the appointment of three temporary members to the National Energy Board; and, • Assess the upstream greenhouse gas emissions associated with this project and make this information public.

To create space for these measures, the Minister of Natural Resources intends to seek an extension to the legislated review time limit by six months (to 21 months in total) and seek an extension to the legislated time limit for the Government’s decision by three months (to six months in total), for an anticipated total of 27 months. The Minister of Natural Resources will look at all other projects undergoing an NEB review to determine whether additional measures are needed to meet the principles.

Media may contact:

Micheline Joanisse A/Director of Communications Office of Canada’s Minister of Natural Resources 343-292-6837

Media Relations Natural Resources Canada Ottawa 343-292-6100

NRCan’s news releases and backgrounders are available at www.nrcan.gc.ca/media

The general public may contact:

Mon.–Fri., 8:30 a.m.–4:30 p.m. EST Telephone: 343-292-6096 E-mail: [email protected]

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Swom before me this 26th day of October A.D. 2017

A S S FOR BRITISH COLUMBIA

SHANNON DAVIDSON Barrister & Solicitor Osler, Hoskin & Harcourt LLP Suite 1700, Guinness Tower 1055 V/est Hasting Street Vancouver, BC V6E 2E9 Telephone : 604.692.27 54 Report from the Ministerial Panel for the Trans Mountain Expansion Project

November 1, 2016 Table of Contents

MESSAGE FROM THE MINISTERIAL PANEL �� 1

DECISION-MAKING IN A DYNAMIC TIME �� 2

Changing Times; Changing Influences �� 3 Oil Prices �� 3 Changing Climate — Environmental and Political �� 4 First Nations Rights and Title �� 5 Social Licence �� 6 The Ministerial Panel — a Review, not a Replacement �� 6

ALBERTA �� 8

BRITISH COLUMBIA �� 13

ISSUES SURVEY �� 23

Marine Impacts �� 23 Earthquake Zone �� 25 Right Route? Right Product? �� 25 Oil by Rail �� 26 Diluted Bitumen �� 27 Age of Infrastructure �� 29 Economic Argument �� 29 Climate Change �� 31 Public Confidence in Regulatory Process �� 33

INDIGENOUS ISSUES �� 35

PUBLIC ENGAGEMENT: MEETINGS, EMAILS AND QUESTIONNAIRES �� 42

QUESTIONS �� 46 MINISTERIAL PANEL FOR THE TRANS MOUNTAIN PIPELINE EXPANSION PROJECT

MESSAGE FROM THE MINISTERIAL PANEL

We have been honoured to serve on the Ministerial Panel on the Trans Mountain Pipeline Expansion, reporting to the federal government on what Canadians said was missed in the National Energy Board (NEB) review of the proposed new pipeline from Edmonton, Alberta, to Burnaby, British Columbia.

We understood that our process would not be a redo of the NEB review, and we expected significant pushback. Even so, we accepted the challenge because we knew a lot had changed since Trans Mountain first sought approval for the new pipeline — from the decline in oil prices to the new government commitments to more ambitious climate action and to the principles of the United Nations Declaration on the Rights of Indigenous Peoples. We also knew that many people who wanted to participate in the NEB pipeline review were denied the opportunity.

We are grateful to those people who engaged. It was a privilege to meet with so many Canadians who were prepared to give up their time to prepare for and present to our panel. We wanted to tell your stories in a compelling way, and we hope that you feel heard.

We anticipate that when you read this report, you will be struck even more by the enormity of the decision that is before the federal government.

We would like to thank the Honourable Jim Carr, Canada’s Minister of Natural Resources for the opportunity to participate in an important and inspiring dialogue, and we trust that our report will be helpful.

Panel Members Kim Baird Tony Penikett Dr. Annette Trimbee

1 MINISTERIAL PANEL FOR THE TRANS MOUNTAIN PIPELINE EXPANSION PROJECT

DECISION-MAKING IN A DYNAMIC TIME

The Government of Canada has announced its intention to decide, before the end of the year, the fate of Kinder Morgan’s proposal to build a $6.8-billion pipeline to carry diluted bitumen originating in the oil sands of Alberta to a tidewater export facility in Burnaby, British Columbia. Yet, as is so often the case when governments or businesses must make go/no-go decisions on large complicated and expensive undertakings, the conditions that prevailed when the project was first proposed have changed, and many of the circumstances that may affect the need for — and impact of — the project over time are also uncertain.

Such is certainly the case in this instance. Since Trans Mountain Pipeline ULC submitted its application to the National Energy Board (NEB) in July, 2013, circumstances have changed dramatically. Oil prices have fallen, governments have been replaced and policies (and laws) have evolved on issues ranging from First Nations rights and title to climate change. The political, economic and environmental conditions that prevailed in 2013, when Trans Mountain asked permission to build the pipeline, were much different by May, 2016, when the NEB recommended that the federal government approve the project as being in the national public interest.

At the same time, Canadians have been locked in debate about the processes, policies and staffing of the current NEB. And many, particularly in British Columbia, have asserted that, in its research and deliberations, the NEB left gaps — in knowledge and public confidence — that were so significant that the Board’s recommendation could not, of itself, support a government approval of the Trans Mountain Pipeline project.

In light of those two factors — the changing circumstances and public concern about the nature and comprehensiveness of the NEB process — the Government of Canada announced that it would direct three new initiatives before making a decision on the pipeline proposal. First, it commissioned an Environment Canada analysis of upstream greenhouse gas emissions associated with the project, to better understand its climate impacts. Second, the Government of Canada recommitted to ongoing consultation with First Nations whose interests would be affected by the pipeline’s construction and operation. And third, on May 17, 2016, the Honourable Jim Carr, Canada’s Minister of Natural Resources, announced the appointment of a three-member panel to complement the NEB review and identify gaps and/or issues of concern of which the Government should be aware before deciding the fate of the pipeline proposal.

This report reflects that panel’s findings. It is based on 44 public meetings attended by more than 2,400 Canadians, of whom 650 made direct presentations to the panel. This included leaders from business, labour and environmental organizations, representatives (including both staff and politicians) from the municipal, provincial and federal levels, academics and other subject area experts. Although not intended as part of the federal government’s concurrent commitment to direct consultation with First Nations, the panel also set aside meetings in each location for direct engagement with Aboriginal peoples, attracting direct input from 22 First Nations, four First Nation organizations and 15 self- identified First Nations presenters.

2 MINISTERIAL PANEL FOR THE TRANS MOUNTAIN PIPELINE EXPANSION PROJECT

In preparation for the public meetings, the panel had direct briefings from the proponent, Trans Mountain Pipeline ULC; from the NEB; and from Alberta Premier Rachel Notley. Trans Mountain, whose staff members attended all public sessions, also submitted a series of issue sheets to the panel’s online portal, addressing questions that had been raised during public sessions. Finally, the panel also received and considered more than 20,000 email submissions, as well as an online questionnaire that attracted 35,000 responses (see Public Engagement: Meetings, Emails and Questionnaires).

None of these inputs was designed as a statistically significant assessment of public opinion. The panel’s mandate was not to test or build social licence for the project. It was to identify what might have been missed in the original review. Appropriate to the panel’s mandate, therefore, this report does not contain specific recommendations. Rather, it provides an overview of input, a reflection of public concern about changing circumstances, and a synthesis of major issues (Alberta, British Columbia, Issues Survey and Indigenous Issues) and including six specific questions that Cabinet may wish to address in the process of coming to a final decision on the future of the proposed Trans Mountain Pipeline project.

Changing Times; Changing Influences

OIL PRICES

It is inevitable, in the necessarily long-range planning period for the construction of long-lasting energy infrastructure, that regular swings in the underlying commodity price will make a major project look more or less feasible over the short term. But the drop in oil prices that began late in 2014 went well beyond what might have been anticipated in the normal course of business. Having been hovering between $90 and $100 a barrel when Kinder Morgan first launched its bid to build a new Trans Mountain Pipeline, crude oil prices plunged by more than half, touching a low point of $26 a barrel in February 2016, before recovering to just under $50 a barrel by mid-year. And there it seemed destined to stay — at a rate that is still highly profitable for low-cost producers such as Saudi Arabia and Iran, but barely affordable for higher-cost operations in the Canadian oil sands or in the shale-oil projects that have raised U.S. production to the point that America is once again competing for space in the oil export market. As recently as the second week of September, the Paris-based International Energy Agency predicted, “Supply will continue to outpace demand at least through the first half of next year.” Yet, within weeks of that prediction, the members of the Organization of Petroleum Exporting Countries (OPEC) had announced their first production cut in more than eight years, and oil prices began to rebound immediately. At time of writing, it was unclear to what degree, how soon — or if — prices would rise and hold at a level that would make an expanded pipeline competitive.

The drop in oil prices had a devastating impact on the Alberta economy, biting deeply into provincial (and federal) government tax revenues and depressing oil-industry investment, driving the unemployment rate in what had been Canada’s most robust provincial economy from 4.4 percent in October, 2014, to 8.6 percent in June, 2016. Accordingly, the Alberta government reported that it was urgently in favour of the Trans Mountain Pipeline project regardless of the fluctuations in oil prices.

3 MINISTERIAL PANEL FOR THE TRANS MOUNTAIN PIPELINE EXPANSION PROJECT

If prices were to return to previous levels and if international demand holds, the Notley government argues that Alberta producers will need additional pipeline capacity to absorb increased production, some that is already in development and some that is expected to be approved as prices recover. If prices remain low, Premier Notley says, Albertans need the project to generate jobs and economic activity at a time when their economy is suffering precisely because of the faltering demand for its principal product. And regardless of whether the oil price is low or high, Alberta would like a pipeline to tidewater, where it could sell to the highest international bidder, rather than being forced to accept what Albertans describe as a discounted price from the United States, currently the only destination to which Canada has significant export capacity.

CHANGING CLIMATE — ENVIRONMENTAL AND POLITICAL

Climate change is not a new issue, although the evidence of impact continues to gather and the implications seem increasingly dire: 2015 was the hottest year since humans began keeping record, taking the title away from 2014. And NASA’s Goddard Institute for Space Studies has estimated a 99 percent chance that 2016 will be hotter still. Even though the warming influence of a passing El Nino was starting to wane, July and August of 2016 were the two hottest months in recorded history, carrying on a 16-month trend during which every month had been the hottest ever – the hottest June, the hottest May, the hottest April…

As to the question of impact, it is impossible to tie specific weather events to a broader change in climate, but that didn’t stop commentators from noting that the fires that swept through northern Alberta in May, 2016, further damaging the Alberta economy, are closely representative of what has been predicted as a likely result of global warming. In light of this devastating fire, and of other dramatic climate events in Canada and around the world, the takeaway appears to be that the state of the climate and the state of the economy are irrevocably interlinked — that while mitigating climate change presents what many consider to be a daunting expense, failing to do so has its own costs.

Another, perhaps more directly relevant change in this regard is the political shift that occurred in 2015, when the New Democratic Party of Premier Rachel Notley was elected in Alberta and the Liberal Party of Prime Minister Justin Trudeau was elected in Ottawa. Both leaders adjusted their government’s climate change policies decisively. In Alberta, Premier Notley’s administration crafted what was immediately hailed as the most ambitious and comprehensive climate mitigation strategy in the country. Federally, Prime Minister Trudeau went to the international climate conference in Paris and, after a decade during which Canada was frequently denounced as a climate laggard, the Prime Minister and his Environment and Climate Change Minister, Catherine McKenna, earned worldwide praise for committing to an aspirational goal of limiting global warming to 1.5 degrees above pre- industrial levels — a substantial drop from the previous global target of 2 degrees.

But while indicating new enthusiasm for tackling climate change, both Premier Notley and Prime Minister Trudeau stated that, in a period of transition, conventional energy infrastructure still has an important role to play. Pointing to the economic damage Alberta suffered because of the oil price drop — and because Canada functionally has only one buyer for its oil exports — the Premier repeated that

4 MINISTERIAL PANEL FOR THE TRANS MOUNTAIN PIPELINE EXPANSION PROJECT

Alberta needs a pipeline to tidewater, in no small part to help stabilize the Alberta economy, while it implements its ambitious climate program.

For his part, Prime Minister Trudeau has said, “The choice between pipelines and wind turbines is a false one.” In a speech in March 2016 to the businesspeople, civil society leaders and science innovators at the Globe Leadership Summit in Vancouver, the Prime Minister went on: “We want the low-carbon economy that continues to provide good jobs and great opportunities for all Canadians. To get there, we need to make smart strategic investments in clean growth and new infrastructure, but we must also continue to generate wealth from our abundant natural resources to fund this transition to a low-carbon economy.”

As both Premier Notley and Prime Minister Trudeau have said, on this issue at least, the point of debate attaches not to the necessity for change — which their governments now accept absolutely — but the pace of change. Both say now that change will take time, and that oil will be a necessary fuel in the period of transition.

FIRST NATIONS RIGHTS AND TITLE

It would be difficult to imagine a subject area in which there has been more change than in social attitudes — and — government responsibility — toward the recognition and the ultimate reconciliation of First Nations rights and title. Until 1951 — the year that Trans Mountain began planning its first oil pipeline on this route — it was still illegal for First Nation peoples and communities in Canada to hire lawyers or make any effort to state or defend their rights in Canadian courts. As discussed in later chapters, much has changed since, in law and policy. But one of the most relevant signs of that change came in a June 2016 decision by the Federal Court of Appeal to overturn the NEB endorsement of the Enbridge-sponsored Northern Gateway pipeline proposal. In its decision, the Court found that, “It would have taken Canada little time and little organizational effort to engage in meaningful dialogue on these and other subjects of prime importance to Aboriginal peoples. But this did not happen.” Rather, the Court said, “We find that Canada offered only a brief, hurried and inadequate opportunity… to exchange and discuss information and to dialogue.” Both the Government of Canada and Enbridge have since announced that they will not appeal this decision, thereby indicating their acceptance of government’s responsibility to meet this higher standard of consultation.

The level of commitment to full nation-to-nation consultation, accommodation and, ultimately, reconciliation, must also be judged in the context of Canada’s newly announced commitment to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). As Aboriginal Affairs Minister Carolyn Bennett said in a news conference on May, 2016, “I am here to announce on behalf of Canada, that we are now a full supporter of the declaration, without qualification. We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.” Given UNDRIP’s call that First Nations be accorded “free, prior, and informed consent,” with regard to development on their traditional territories, this has the capacity to re-set the conversation about when

5 MINISTERIAL PANEL FOR THE TRANS MOUNTAIN PIPELINE EXPANSION PROJECT

and how it is appropriate to consult with First Nations and when those Nations may have something that may be interpreted as a veto over projects on land in which they have an interest.

SOCIAL LICENCE

Just as UNDRIP has changed some people’s perception of First Nations’ ability to say, “No,” to a project, the definition of social licence appears to have evolved in the past three years. Part of that change rests on a comment first spoken by Prime Minister Justin Trudeau and later committed to in the Liberal Party’s election campaign platform: In a public address on July 23, 2013, the future prime minister said, “Governments might grant permits, but only communities grant permission.” He was speaking at the time about a proposed mine outside the City of Kamloops — it would be five months before Trans Mountain would even submit its application to build the new pipeline — but the quote has been invoked many times since to suggest that communities have an absolute (if still ill-defined) right to withhold permission for resource developments with a significant environmental impact.

THE MINISTERIAL PANEL — A REVIEW, NOT A REPLACEMENT

Against the background of the changes already discussed, and in light of other complaints about the National Energy Board’s process of environmental assessment and review, there emerged in some quarters an expectation that the Government of Canada would replace the NEB review of the Trans Mountain proposal with a new process altogether. Indeed, the new administration of Prime Minister Trudeau has indicated an intention to conduct a thorough overhaul of the NEB. But in January, 2016, Environment Minister McKenna announced that this regulatory reorganization is expected to take several years and that the Government did not intend to force proponents that had pursued complex and expensive applications, in good faith, to have to begin again from scratch.

In May, the Government announced a more specific path forward, stipulating five new conditions. These were as follows:

2. Decisions will be based on science, traditional knowledge of Indigenous peoples and other relevant evidence;

3. The views of the public and affected communities will be sought and considered;

4. Indigenous peoples will be meaningfully consulted, and where appropriate, impacts on their rights and interests will be accommodated; and

5. Direct and upstream greenhouse gas emissions linked to the projects under review will be assessed.

These goals were to be achieved by the three processes described earlier: the Environment Canada review of upstream greenhouse gas emissions, the renewed consultation with First Nations; and

6 MINISTERIAL PANEL FOR THE TRANS MOUNTAIN PIPELINE EXPANSION PROJECT

this Ministerial Panel. The overarching goal, according to Natural Resources Minister Carr, was to ensure that, “Canadians will see that the way in which we’re going about it makes sense and that, when the decision time comes, that there will be a consensus, at least, on the process that got us to the decision.”

To that end, Minister Carr directed this panel to:

§§ Review and consider input from the public via an online portal;

§§ Meet with local stakeholder representatives in communities along the pipeline and shipping route;

§§ Meet with Indigenous groups that wish to share their views with the panel, noting that the panel’s work will complement, not substitute, the Crown consultations; and,

§§ Submit a report to the Minister of Natural Resources no later than November 1.

The tight timeline and the panel’s unusual mandate (to “complement” rather than review or redo the NEB process), created significant confusion and, especially in British Columbia, a degree of backlash. Some members of the public, as well as some First Nations, assumed that the panel would facilitate a full-scale consultation. That was never the intent (especially in the case of First Nations, where the responsibility for consultation fell elsewhere). The panel was on a mission of issues identification and engagement. We set out to try to achieve a fuller understanding about what the NEB process might have missed and to sample input from among the more than 460 people and interested parties who had been denied intervenor or commenter status before the NEB.

The necessity to conduct public meetings in major centres along the route and to assemble and synthesize input in time to provide a finished report by November 1 also necessitated a quick start, including a full series of summertime meetings. This, too, became a matter of controversy and objection. From the first meeting, in Calgary on July 7, participants complained of short notice and of the inconvenience of having to meet during the summer vacation season. There were further complaints about the constitution of the panel itself and about its process. On one side, project opponents said they would only have been satisfied with a completely new NEB review, while supporters suggested that the panel’s work constituted an unnecessary delay, holding up the approval of a what they felt was a worthy and necessary development.

Yet, even those who registered some form of process complaint often went on to speak passionately about the proposed project — describing their objections to it or their reasons for support. And an overwhelming majority registered their gratitude for having a venue and an opportunity to air their views, to connect with their neighbours — to put on record their issues, complaints, concerns and, in some cases, their impatience. So, having engaged with stakeholders in communities and with First Nations along the route and having reviewed their concerns, we hope that this report will fulfil the panel’s mandate. For, as will become evident in the pages that follow, there remains a strong public perception that there were significant gaps in the NEB review and a sincere concern about the social, economic and environmental impacts of the Trans Mountain Pipeline proposal.

7 MINISTERIAL PANEL FOR THE TRANS MOUNTAIN PIPELINE EXPANSION PROJECT

ALBERTA

It would be simplistic — and incorrect — to present all of Alberta or all of B.C. as either uniformly supportive or unanimously opposed to the Trans Mountain proposal to triple oil pipeline capacity from Edmonton, Alberta, to the tidewater harbour in Metro Vancouver. As the Ministerial Panel travelled and held meetings from Calgary to Victoria, it heard from supporters and critics in both provinces, and there were consistent threads of optimism and concern in every location. However, it is impossible to ignore the majority public support among those who spoke to the panel in Alberta and the widespread discomfort and, in many cases, flat rejection voiced by presenters in British Columbia. As people pointed out in both provinces, the project is such that its principal benefits flow to Alberta while the environmental and economic risks fall much more heavily on British Columbia. This creates a tension that might only be addressed at a federal level.

If the attitude of Albertans were to be summed up in a single word, it would probably be: impatience. It has been a difficult couple of years in a province that has prided itself on being one of the most productive economies in Canada. The Canadian Association of Petroleum Producers (CAPP) reported in April 2016 that anticipated capital spending in Canada’s oil and natural gas sector was down by $50 billion from 2014, the largest two-year decline since CAPP and its predecessor organizations started tracking this data in 1947. Accordingly, as reported by the Conference Board of Canada, Alberta’s gross domestic product (GDP) dropped by four percent in 2015 and was expected to drop a further two percent in 2016. Unemployment nearly doubled from 4.4 percent in September 2014 to 8.6 percent in June 2016, and provincial government revenues plunged: combined royalties from oil sands and conventional oil sources fell from $7.7 billion in 2013/2014 to $1.9 billion in 2015/2016.

Against this backdrop, the panel arrived in Alberta for its opening round of meetings, in Calgary “The project is under pinned by shipper on July 7. More than 75 people attended the long-term contracts such as those made first Public Town Hall, and all but one spoke in by Suncor Energy and would be a shovel- support of the Trans Mountain Pipeline project. ready project if approved. Despite the Many described themselves as unemployed or recent economic downturn, Western underemployed former oil industry workers, people Canadian crude oil supply continues to grow with projects that were already facing diminished opportunity and eager for any under construction. investment that might help turn Alberta’s economic fortunes back in a positive direction. Most The project will provide much-needed presenters seemed well versed in the project details market access not only for Western and many mentioned the total economic impact of Canadian crude oil but for refined products a project that Kinder Morgan is now estimating at as well. The existing Trans Mountain system a total cost of more than $6.8 billion. Noting that has been in chronic apportionment resulting the company is reporting that it will create a total of in shippers on the system getting less 17,000 jobs during the project’s construction phase, pipeline capacity than they would like.” one presenter said, “I could use one of those jobs.” – John Van Heyst, Suncor Energy Marketing Inc.

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Among points of agreement in the Calgary Town Hall, the first was that these Albertans are deeply proud of their resource industry and convinced of the contribution that it has made to economic prosperity in Alberta and Canada. One presenter after another described the provincial industrial and environmental standards as “the best in the world.” They said Alberta’s industry is efficient, professionally managed and subject to what they consistently characterized as the highest environmental and regulatory standards. And while no one introduced objective or internationally tested measures by which to document that good performance, many presenters pointed to countries where they said that technological excellence and the protection of environmental values and human rights is plainly below the Canadian standard. In a world where fossil fuels are still crucial to global economic infrastructure, these presenters said they felt strongly that Canada should be proud to produce and sell as much oil as possible, for local and national benefit and, in the process, to displace hydrocarbons originating in countries such as Nigeria, Saudi Arabia or Venezuela.

A second point of agreement, raised most frequently in Calgary, but reinforced in other “Why would we wish to import oil from other meetings in Alberta and central British Columbia, countries that aren’t subject to the same was that presenters who are closely linked to the environmental standards as our country fossil fuel energy industry tend to have a high and don’t abide by the same basic human regard for the expertise and judgment of the rights codes as we do? We are supporting National Energy Board. Many said they felt the NEB countries that minimize women’s rights process had been extensive and thorough and that and don’t believe in equality, while stifling the national energy regulator is the appropriate production in our own country.” arbiter precisely because it has the technological – Harv Davies, Cenovus knowledge, the process experience and the legal mandate to assess proposed energy developments. Several of these presenters expressed frustration that the work of the Ministerial Panel might delay a project that had already been thoroughly vetted.

Frustration and impatience notwithstanding, from the very first meeting, an overwhelming number of Alberta presenters expressed their gratitude for the opportunity to have their voices heard in an open, public and official forum, such as that provided by the Ministerial Panel. Many had been denied intervenor or commenter status in the NEB’s Trans Mountain process, and even among people who were generally in support of the new pipeline, many still wanted to offer specific criticisms or to address perceived gaps in the NEB review.

One of the gaps most frequently mentioned involved the ruling that the NEB would not consider the Trans Mountain Pipeline project’s overall impact on climate change. The NEB considered only the greenhouse gas emissions (GHGs) related directly to the construction of the proposed pipeline and recommended the project partly on the basis that Kinder Morgan has undertaken to offset that impact entirely. But the NEB did not take into account the degree to which a new pipeline would facilitate an increase in oil sands development, which in turn might trigger an increase in upstream GHGs (those generated in the production of petroleum products destined for the pipeline) and downstream GHGs (those generated when the oil products are ultimate burned or consumed).

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The principal takeaway in the climate conversation in Alberta was that an overwhelming majority of people who spoke to the Ministerial Panel understand the science of climate change and are conscious of the impact that fossil fuel development plays in accelerating this global risk. There was no campaign of denial. At the same time, presenters pointed to domestic and international energy industry projections that show a rising need for hydrocarbon-based sources even during a period of transition to renewable forms of energy. The question, they said, is not whether Canada, and the world, should be shifting to clean energy; rather, it’s a matter of how quickly that conversion can occur. The presenters who appeared before us in Calgary suggested a transitional timeline in the order of 30 to 50 years. And if you accept that timeline as realistic, they said that Canada should be prepared in the meantime to compete on fair and even footing for international market share; Canada should not restrain its energy production at the expense of the country’s economic potential or living standard, especially when our international competitors can be expected to meet the global appetite for oil, even if Canada’s output were to be removed from the mix.

This economic argument in favour of development carried over strongly during panel meetings in Edmonton, which included roundtable discussions involving nearly 50 representatives from labour and business organizations, as well as from local government and other interested individuals. Here again, the panel heard urgent and passionate pleas for economic stimulus, presented, again, against the backdrop of economic strain. For example, the human resources officer from a mid-sized Alberta drilling contractor described losing 75 percent of the company’s office staff in the last two years, while employment across the whole company had fallen from 8,000 full-time jobs to just 1,500. For these and others, the proposed pipeline appears to represent not just as an interim job creation opportunity, but a measure by which to unblock the Alberta oil export potential — to stimulate the whole industry. Officials from business (e.g., the Edmonton Chamber of Commerce) and from construction trade unions picked up this theme. And many suggested that it is appropriate, in a cyclical resource industry, to support major infrastructure projects at a time when the oil price is low, the private sector is in retrenchment and the necessary labour is more readily available, and at a more affordable rate.

Presenters also continued to address the perceived environmental risks of a new pipeline, stressing repeatedly that they are eager to play a part in transitioning to a clean energy economy — at a “practical” pace. Robert R. Blakely, Canadian Operating Officer for Canada’s Building Trades Unions, said his members understand the risks of climate change, but also recognize the realities and demands of an economy in transition. He said, “We’re not going to sacrifice the environment for a cheque.”

Another common, and similar, thread — mentioned frequently by pipeline supporters along the whole route and beyond — was that rising world demand might draw resources from Alberta’s oil fields regardless of whether the Canadian government approves this or any other new pipeline proposal. Absent additional pipeline capacity, presenters repeatedly raised the spectre of millions more barrels of oil crossing the country instead by train, creating the risk of Lac-Mégantic-style catastrophes in rail-side communities or devastating oil spills into rivers and other waterways along the route. Chris Bloomer, President and CEO of the Canadian Energy Pipeline Association, pointed out that pipelines currently carry in excess of 1.2 billion barrels of oil per year and have maintained a safety rating

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of 99.9995 percent between 2002 and 2015, a performance that can’t be matched by trucking or rail alternatives.

In Calgary and Edmonton, and in the pre-briefing from Alberta Premier Rachel Notley, one of the most consistent pleas that we heard from pipeline advocates was for access to tidewater. The issue, here, is one of reaching an international market other than the United States. Given historic demand and the existing state of Canada’s export infrastructure, NEB statistics show that the U.S. consumes more than 99 percent of all of Canada’s oil exports, from conventional light crude to heavy bitumen from the oil sands. Pipeline advocates told the panel that, facing a single buyer — and without infrastructure with which to access competitors who might pay more — Canada is forced to sell its product to the U.S. at a discount. (For example, Western Canada Select was selling for about $14 per barrel less than West Texas Intermediate on the day of panel meetings in Edmonton.) Premier Notley — and many other Alberta presenters — argued that a new pipeline, connected to an ocean-side export terminal, would be in Alberta’s and Canada’s interests even if oil production and exports did not increase because tidewater access would enable Canadian providers to sell their resource to the highest bidder, rather than remaining trapped as “price-takers,” restricted to sell only to the United States (which is currently producing all the oil it requires for domestic consumption).

Notwithstanding the general tenor of support — and excepting First Nations issues, which we will address separately later in this report — there were three areas of concern or opposition raised during the Alberta meetings. One was local impact, an issue much in the fore in Jasper. In a small-group discussion in that community, we heard from presenters who said that the relatively low accident rating from pipelines is meaningless to residents along the Kalamazoo River in Michigan, where they are still dealing with the consequences of a 2010 spill of Canadian-sourced diluted bitumen (dilbit). Given the potential complications from a dilbit spill, presenters said no level of risk is completely acceptable in Jasper National Park, a World Heritage Site worthy of absolute protection.

That objection also flags the two other issues: whether the Trans Mountain Pipeline is an appropriate route (in general and in specific locations along the way); and whether Canada should be shipping and selling dilbit, rather than upgrading and/or refining oil sands bitumen — to keep the refinery jobs in Canada and to limit the risk of spilling this more dangerous commodity. Both questions attracted a great deal more discussion in the panel’s later meetings in British Columbia, but it’s worth nothing that it was Albertans who first put these issues on the record — out of concern for the environment and for the perceived loss of domestic economic activity.

On the question of whether Trans Mountain has proposed an appropriate route, presenters in Edmonton speculated that a good part of the reported pipeline opposition in B.C. might be attached to the fear of an oil spill in the busy and beautiful Vancouver harbour. One presenter suggested that rather than following the existing Trans Mountain right-of-way to a tank farm in Burnaby, B.C., and the Westridge export terminal in the upper reaches of Burrard Inlet, it would be preferable to run a new pipeline south of the Fraser River to a more open-water port adjacent the coal terminal on Roberts Bank. Another presenter spoke of a completely new pipeline proposal (Eagle Spirit Energy) that would carry upgraded oil and terminate at Prince Rupert. And, later in our process, people also raised the

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prospect of diverting the Trans Mountain line south near Sumas, B.C., to the Cherry Point oil export terminal in Washington State. Along with references to the Northern Gateway and Energy East pipeline proposals, all of these options were introduced as hypothetical but, by some arguments, preferable alternative routes.

The other concern — and again one that continued to generate a lot of discussion in the panel’s later meetings in British Columbia — involved the question of shipping and selling dilbit. Dilbit is a combination of bitumen, mined from the Athabasca oil sands, and some form of diluent that makes the thick and heavy bitumen suitable for transport by pipeline. The most common diluent is natural gas concentrate, usually mixed in a proprietary combination with other chemicals. The result is a fluid of adequate viscosity and specific density to flow under pressure.

The panel heard two basic objections to dilbit being shipped by Trans Mountain. The first, raised by construction trades representatives and others in Alberta, was that bitumen is the oil industry equivalent of a raw log: it is the resource in its least-refined state. By exporting bitumen, presenters told us that Canada was exporting jobs that might otherwise be created and maintained if the refinery capacity were to be improved closer to the resource extraction site. The second objection is that dilbit is regarded as a more complicated and dangerous product. Presenters reported that the mixture is much more explosive than crude oil and more difficult to clean up when it spills. (We will address this question in greater detail in the next chapter.)

While we opened this chapter by recommending an over-simplification of the positions of those in Alberta versus those in British Columbia, it would be impossible to overlook the sense that there are two solitudes between the provinces. Many who appeared and spoke to the panel in Calgary and Edmonton were completely committed to the positive aspects of this and other pipeline projects and suggested, again and again, that opponents simply don’t understand either the global need for fossil fuel products or the high standard of Alberta’s technological and environmental performance. Several presenters said they believed that pipeline opposition is rooted in a basic lack of what they called “energy literacy.” One said, “In Alberta, there is a clearer picture of reality.” And another (in an apparent misunderstanding of the panel’s mandate or capacity), urged that we “help de-politicize the process” by explaining, in B.C., both the need for the project and the high standards of the Alberta industry.

It was interesting, therefore, on the first day of the panel’s meetings, when one of the youngest presenters — a recent university graduate — stepped up to say that many people in his generation will never be swayed by an argument based on safety statistics alone. Although a supporter himself, the young man pointed out that, for many of his contemporaries, “it’s all about the narrative of what kind of country we want for the future.” And if Albertans hoped to win support for this or any pipeline project, he advised, “There has to be a bigger conversation of the role of the pipeline in transition from a carbon-based to renewable economy.”

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BRITISH COLUMBIA “I do not understand how the pipeline could “People say the three best things that happened to Kamloops are the railroad, the highway and the have been allowed to be built across the pipeline.” With this comment during the Ministerial Panel’s opening-day meeting in B.C., former B.C. [Sardis/Vedder] aquifer in the first place. Member of the Legislative Assembly Kevin Krueger offered a perhaps counter-intuitive introduction Perhaps they simply did not have knowledge to the opinions that British Columbians might harbour about the Trans Mountain Pipeline expansion of the aquifer in the 1950s. Perhaps they proposal. Kamloops, a community of almost 90,000 people about halfway between Jasper and chose to believe that pipelines would never Vancouver, was the panel’s first stop in B.C. We held five meetings there over two days in July, spill. In any case, it would be unthinkable to attracting more than 160 attendees from First Nations, local government, business and industry, allow that mistake to be repeated now.” environmental groups and independent citizens. In partial contrast to a week of meetings in Alberta, – Cary Stephen, Chilliwack BC (submitted online) we witnessed a general shift from nearly unanimous support for a new oil sands pipeline to an increasing amount of discomfort about the risks and implications of the pipeline in B.C. But as many Kamloops presenters were quick to point out, just as there is a perceived division between Canada’s two western-most provinces, there is also a divergence of opinion within B.C. itself, especially between residents of the Interior and those in the densely populated Lower Mainland around Metro Vancouver.

Away from the major centres, presenters told us that a project of this magnitude has a more obvious and crucial impact on local economies. Canadian Senator Nancy Greene Raine, who grew up in Rossland, southwest of Kamloops, seconded Krueger’s analysis, calling the roads, rails and pipelines “the veins of our economy.” She said she could still recall the effects, even as far as Rossland, of the economic windfall triggered by construction of Trans Mountain’s first pipeline in 1953. Gord Heisterman, a councillor from the District of Clearwater, halfway between Jasper and Kamloops, said, “We’re totally for the expansion of the pipeline,” adding that “the Trans Mountain safety record is impeccable” and that transportation alternatives such as road or rail would put his community at a much greater risk. John Ranta, Chair of the Thompson–Nicola Regional District (TNRD) and Mayor of Cache Creek, west of Kamloops, pointed out that 36 percent of the proposed pipeline is contained within the TNRD, which stands stoutly in support. “It’s going to be the finest pipeline in the world,” Ranta said. There were others, as well, in business and industry who talked about anticipated economic benefits or endorsed Trans Mountain’s performance in this region as a good industrial neighbour. For example, Tim Foster, the general manager of Mike Wiegele Helicopter Skiing, said 130 kilometres of the current pipeline passes through the area where his company operates and part of the pipeline runs right past his own office. “The existing line has had no impact, and we have excellent communication with Trans Mountain looking at installation techniques and how to minimize impact,” Foster said. Finally, Merritt Mayor Neil Menard, said, “We believe that Kinder Morgan has answered all the environmental concerns, and the benefits would be astronomical.” He added: “I understand the concerns of people in the Lower Mainland, but they need to support the needs of the Interior.”

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To be clear, these views were not unanimous — or even in the majority — in the Kamloops meetings. The City of Kamloops itself has taken a neutral position on the fate of the proposed pipeline, and most of the presenters who appeared over two days raised a host of concerns. They questioned the economic case for the pipeline and posted concerns about its impact on fragile ecosystems such as the Lac du Bois Grasslands Protected Area. Many also spoke passionately about the larger environmental risks, ranging from the threat of spills to the implicit promotion of climate change (all issues that will be canvassed at greater length in the pages to come). But it seems important to recognize the wide range of opinion in B.C. and the variation in support, concern or outright opposition, community by community.

As the panel moved west, opposition increased “I do not understand how the pipeline could markedly and in two general areas. There were have been allowed to be built across the continuing expressions of concern about general [Sardis/Vedder] aquifer in the first place. environmental impacts, both local and global. Perhaps they simply did not have knowledge But presenters also raised an increasing number of the aquifer in the 1950s. Perhaps they of issues arising from the tension of running a chose to believe that pipelines would never major piece of fossil-fuel infrastructure through an spill. In any case, it would be unthinkable to ever-more densely populated area. For example, allow that mistake to be repeated now” in Chilliwack, where we held two meetings that attracted more than 100 attendees, presenters — Cary Stephen, Chilliwack BC (submitted online). suggested that the current Trans Mountain pipeline poses a serious risk to regional drinking water, a significant part of which is drawn from the Sardis-Vedder aquifer. As one presenter said, “If there was a spill, it would infiltrate the drinking water and be almost impossible to clean up.” This concern was raised again for the Chilliwack and Yarrow aquifers further down the Fraser Valley, and for the Hoppington aquifer, which is a primary water source for 11,000 people in Langley. Many people suggested that whether the new pipeline is approved or not, the current line should be moved away from these aquifers.

In both Chilliwack and Abbotsford, where the panel held two meetings with nearly 80 attendees, we heard complaints about Trans Mountain’s performance — about the way it manages the existing pipeline and the actions it has taken to prepare for the new line. Where ranchers from the Interior had praised Trans Mountain staff for being respectful and responsive, farmers in the Fraser Valley — many of whom said they support the pipeline in principle — posted a long list of complaints about the pipeline and the company’s general attitude. Members of the Collaborative Group of Landowners Affected by Pipelines (CGLAP) said they had suffered loss of use or loss of value for land because of the impact of the existing pipeline on their property. They said the line creates access and drainage problems, that it is frequently outside the legal right-of-way and is not always buried to the designed 60-centimetre depth, which makes it a hazard to cross with farm equipment. And now that Trans Mountain is working to secure permission to build the second line, CGLAP legal counsel Delwen Stander said that his members had been “threatened and bullied” to accept one-time signing bonuses that will not necessarily indemnify them for all of the disruptions and potential property devaluation that the new line may cause during its lifetime. The farmers also complained that the federal authority of the NEB could overrule the protective elements of British Columbia’s Agricultural Land Reserve.

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In Langley, where the panel held five meetings over two days, attracting nearly 200 attendees, lawyers representing the Township of Langley and the City of Surrey posted numerous concerns about the unfunded burden of accommodating a pipeline within a densely populated community. Delivering a written submission from the Township of Langley, solicitor Maegen Giltrow said, “The proposed pipeline would leave local communities vulnerable to considerable risk from pipeline failures and emergencies, and even without any pipeline-related accidents, would place a substantial financial burden upon local taxpayers to subsidize the true cost of having the pipeline come through their community.” Indeed, Langley joined with the municipalities of Surrey, Coquitlam, Abbotsford and Burnaby to engage the consulting firm Associated Engineering to analyze the pipeline’s economic impact. In its report, Cost Impacts of the TransMountain Expansion on Lower Mainland Municipalities, the firm stated:

“While KM has acknowledged that there will be a disruption to municipal infrastructure during construction of the proposed TMX (Trans Mountain Expansion) pipeline, there has not yet been acknowledgement of the long-term cost impacts to municipalities for operation, maintenance and construction of municipal infrastructure around the proposed expansion. There is no question the presence of the TMP (the original Trans Mountain Pipeline), and subsequently the TMX is and will be, the source of additional costs for the municipalities when operating and replacing existing infrastructure and when constructing new infrastructure.”

Associated Engineering calculated that cost for all five municipalities combined at $93 million, an amount that Giltrow said is not balanced by taxes or other community benefit payments from Trans Mountain. She said: “It is simply wrong to equate taxes, which are paid by all, to offsets.” As to community benefits (for example, Trans Mountain has agreed to invest in Langley’s emergency response capacity), “enhancements to emergency response wouldn’t be necessary without this pipeline,” she said.

This was a consistent position among the municipalities involved in this study. In an online submission, Coquitlam Mayor Richard Stewart said:

“While all utility corridors have an impact on Coquitlam’s municipal operations, Trans Mountain’s oil pipelines are fundamentally different because they do not provide a service to our residents (homes are not connected to the pipeline) and, therefore, do not provide a direct benefit to them. Trans Mountain’s pipeline is a private venture whose purpose is to move petroleum products through Coquitlam to offshore clients. In fairness, Coquitlam taxpayers should not be required to take on any additional financial burden or negative impacts created by Trans Mountain’s pipeline.”

The City of Surrey’s Assistant Solicitor Anthony Capuccinello agreed saying, “The City does not support any expansion that has negative impacts on the City of Surrey. But after outlining a series of other conflicts and disagreements with Trans Mountain that Surrey had posted during the NEB hearings — including complaints about routing the new pipeline through the Surrey Bend Regional Park — Capuccinello took a step further, urging that, as part of any pipeline expansion, Trans

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Mountain should be compelled to decommission and remove any existing pipeline that runs through heavily populated areas of that city.

As the panel moved to Burnaby, where we conducted eight meetings over three days, attracting more than 250 people, the focus shifted sharply to public safety. As Burnaby Mayor Derek Corrigan described in his presentation to the panel, the current Trans Mountain Pipeline is “an historical remnant” in his city. The line was laid in 1953 to supply five oil refineries, all operating and employing people in what was then a small, mostly rural community. As one presenter put it, when Trans Mountain was seeking right-of-way for that first pipeline, “All we had to do was move two cows.” Today, the line runs through the second-largest and third-largest cities in B.C. (Surrey and Burnaby) and terminates at a tank farm at the foot of Burnaby Mountain. Residential neighbourhoods have developed on two sides of that facility and above it are the main campus of Simon Fraser University (SFU) and another residential community called UniverCity. Kinder Morgan now proposes to double the number of oil tanks in that location, from 13 to 26, tripling the tank farm’s storage capacity from 1.7 million barrels to 5.6 million barrels. And given that the new pipeline would carry diluted bitumen, rather than crude oil, the facility would be storing a much more volatile substance. The tanks would be closer together and closer to the fence, which the Burnaby Fire Department says means that “many of the potential tank fire scenarios within the Trans Mountain Tank Farm facility would be inextinguishable due to lack of safe firefighting positions.”

As described by fire officials and by residents, some of those scenarios are severe. The worst would be a “boil-over” event in which the water that inevitably collects at the base of these storage facilities heats up and turns to steam. As described in a report by the U.K.-based ASK Consultants, prepared for the City of Burnaby, “The steam being three orders of magnitude greater than that of originating water, virtually the entire contents of the tank are explosively ejected and immediately ignited by the surface fire, generating a massive fireball supplemented by widely broadcast drops of burning fuel.” Because the tank farm sits at the intersection of the only two access roads to SFU, that creates a scenario in which thousands of students and residents would have to “shelter in place” even in the face of a fire climbing the mountainside through the Burnaby Mountain Conservation Area and toxic fumes pushed by the fire and carried by the prevailing wind.

According to Mark LaLonde, Chief Safety Officer for Simon Fraser University, “There could be in excess of 35,000 people going to or leaving the top of Burnaby Mountain on a regular basis who could be impacted by an emergency event at the tank farm. Trans Mountain has not provided an accurate assessment of the potential risks to SFU and the communities adjacent to the tank farm arising from a significant event, such as a major fire, tank blowout, boil-over or multiple tank fires at the tank farm.”

The NEB had rated the foregoing as a low-probability event, but the ASK Consultants report says: “The incidence of a boil-over is by no means so low as to remove it from consideration as a credible scenario.” Many presenters also described the potential as compelling, given a 2007 event in which an excavator working on a sewage line pierced the Kinder Morgan extension between the tank farm and the company’s Westridge export terminal, releasing more than 250,000 litres of crude oil, much of which sprayed through a residential neighbourhood under pressure, covering homes up to two blocks

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away and forcing 250 residents to evacuate. About “When the tank farm facility explodes, Kinder 70,000 litres flowed into Burrard Inlet, requiring a Morgan’s plan is to call upon the City of $15-million cleanup. Burnaby Fire and Emergency response resources. The City of Burnaby, however, One of the residents who had to flee the earlier spill is not equipped to respond to a tank farm is Mary Hatch, now a member of an organization disaster... I cannot believe that in Canada called BROKE — Burnaby Residents Opposed to and B.C. residents are having to come Kinder Morgan Expansion. Hatch, who appeared up with their own ad hoc emergency before the panel in Burnaby, also submitted a plans because the provincial and federal comment through our online portal, in which she governments will not help their own citizens said, “At least 20 Burnaby schools are in close stay safe. Please. Please help us stop this proximity to the oil infrastructure of the Kinder expansion before it ruins us.” Morgan pipeline... The biggest worry for schools is the proposed expansion of the tank farm on - SFU staff member and UniverCity resident Lauren Barke Burnaby Mountain... Tanks will be closer together, increasing the risk of fire jumping from tank to tank. There is no emergency response plan to safely evacuate students in the event of a spill and there is no assurance from the Burnaby Fire Department that they can cope with a tank farm fire.”

On the contrary, both the Burnaby Fire Department and the New Westminster Fire Department continue to be sharply critical of the Trans Mountain Pipeline expansion proposal. Tim Armstrong, Fire Chief in New Westminster, told us, “We don’t have clear disclosure on Trans Mountain’s “We believe the NEB process was robust emergency response plan.” Armstrong said that and thorough and that the project should the company was insisting that its plans are proceed with all due haste.” confidential, but the Fire Chief said other shippers — the railways, for example — are willing to share – Surrey Board of Trade CEO Anita Huberman proprietary information for safety’s sake and that the department holds that information in trust. Armstrong also said that, on one occasion, when asked about contingency plans, Kinder Morgan said it would bring an expert response team in from Alberta, to which option Armstrong said: “That’s not an emergency response. That’s a remediation plan.”

The panel’s next stop was Vancouver, where we held eight meetings over three days, attracting 504 attendees. And here it bears repeating that this high-level reflection does not come close to representing all of the issues raised or even to “I’m in tourism. I promote ‘Super Natural suggest that any of these focal points assumed British Columbia’ to people around the world. Let me assure you that what is at primary importance. In every community we visited, stake here is the image of British Columbia. there were presenters — from Chambers of If there is ever an oil spill … the story will Commerce, construction labour unions, engineering simply be ‘oil spill pollutes B.C. coast’ – and supply firms — who spoke in favour of the end of story. And that is how reputations are lost.”

– Randy Burke, Bluewater Adventures, Director17 of the Gwaii Haanas Tour Operators Association and a Director of the Commercial Bear Viewing Association of B.C. MINISTERIAL PANEL FOR THE TRANS MOUNTAIN PIPELINE EXPANSION PROJECT

pipeline on the basis that it would provide jobs and economic opportunities for those along the way. That said; the focus in Vancouver was overwhelmingly on both the economy and the environment — and the relationship between the two. The first speaker set the tone. Tarah Stafford, representing a group called Conversations for Responsible Economic Development, made the case for environmental protection linked to economic impact, saying that the Trans Mountain Pipeline would create 50 full- time jobs in B.C., but put at risk 200,000 jobs in tourism, film, TV, real estate, high tech and other coastal industries that rely upon the health and beauty of the West Coast environment. Beginning as early as in our first meeting in Calgary, presenters had acknowledged that it is difficult to make an accurate comparison of the pipeline project’s economic benefits, which the proponent sets out with a high degree of certainty, to environmental and economic risks. That’s partly because some of the risks are hard to tabulate (e.g., cumulative effects on habitat or air pollution) and some are unintended, even if sometimes unavoidable. Presenters said there is always a danger that you count the benefits and understate the costs, often just by hoping that nothing will go badly wrong.

In Vancouver, the economic argument focused most heavily on the risk side of the ledger. Vancouver Mayor Gregor Robertson shared research from the SFU School of Environmental Management that argued Trans Mountain had greatly underestimated the risks and likely costs of oil spills. The report calculated spill risks of 79 percent to 87 percent over the 50-year lifespan of the project. It suggested that terrestrial spills costs could range from $5 million to $1.5 billion, while tanker spills could ultimately cost as much as $4.4 billion. As with Stafford, Robertson also spoke about Vancouver’s “clean, green sustainable brand,” on which the city has put a value of $31 billion. A major oil spill that marred the beaches and changed the public perception of the city would reduce that brand value, immediately, by $3 billion, Robertson said.

Just as the Kinder Morgan/Trans Mountain oil spill in Burnaby had reinforced concern about the risks “In the case of a tanker spill, the numbered in that community, Vancouverites pointed to the foreign companies that own the tanker/ April 2015 fuel oil spill from the bulk grain carrier vessel would be hard to hold responsible MV Marathassa as a current example of the risk to to pay for coastal oil cleanup. Once the Metro Vancouver’s waters, coastline and reputation. bitumen leaves the KM pipeline – it is no longer legally the responsibility of KM. The And here again there was evidence of two starkly taxpayers of B.C. would be responsible different views about the odds and implications of for costs of cleanup. The tankers liability oil spills and about Canada’s capacity to respond. is limited to $1.3 billion, a major spill could On one hand, Michael Lowry of Western Canada easily cost ten times this amount (over $10B Marine Response Corporation (WCMRC) told with only 5% of bitumen recovered).” the panel that the Marathassa spill proved his organization’s ability to respond. The WCMRC is an – Alan James, Vancouver industry-funded cooperative and the only certified oil spill response organization on Canada’s West Coast. According to an independent review by the Canadian Coast Guard, the Marathassa spill was first reported at 16:48 on April 8, 2015, and Port Metro Vancouver called WCMRC into action at 17:59. The first WCMRC boat arrived on the scene and began the cleanup at 21:25. This, Lowry said, was a response “well within” the Canadian government’s mandated six-hour standard. The Coast Guard

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report concluded, “The operational fuel oil spill cleanup was successfully executed by the WCMRC under the direction of the CCG.”

Yet the City of Vancouver — and many other presenters who spoke to the panel in Vancouver and North Vancouver — challenged that view. No one notified the City of Vancouver for 13 hours and by the morning after the spill the WCMRC reported recovering just 1,400 litres of fuel oil, less than half of what was spilled.

As Vancouver City Manager Sadhu Johnston told the panel, this was a small spill (~2,900 litres), the result of human error from a very new freighter. Johnston said: “The worst case scenario for an oil spill from a tanker carrying oil from the Trans Mountain Pipeline is estimated by Kinder Morgan to be ~16,000,000L.” And Johnston, and many other presenters told the panel that they thought both Trans Mountain and the NEB were underestimating the likelihood of a large spill and therefore discounting too heavily the actual risk. The NEB, for example, said in its report that it found “there is a very low probability” of a high-consequence spill from the pipeline, the tank terminals, the pumps station, the Westridge Marine Terminal or from a “Project-related” tanker, and that this level of risk was therefore “acceptable.” Many presenters complained that, because the NEB regarded the probability as so low, it didn’t require Trans Mountain to create models of a cleanup scenario for a spill of that magnitude, leaving a serious gap in public understanding of the risks, costs and implications of such an event. Presenter Brian Gunn, speaking to the panel on behalf of an organization called Concerned Professional Engineers, urged that people look more closely at the math in these calculations. For example, Kinder Morgan’s consultant stated that the “return period” for a spill of at least 8,250 cubic metres (roughly 3,000 times the Marathassa spill) is 473 years. But, Gunn said, “The 473-year return period presented by Kinder Morgan is mathematically equivalent to… a 10 percent probability of a marine spill of at least 8,250 cubic metres within the 50-year operating life of this project.”

Gunn and others also drew attention to the dramatic increase in tanker traffic that would occur if the “People always say that this is the best place on Earth, and I don’t know if that’s true. But I project is approved: from four or five tankers a know it will be false if we let another pipeline month today to 34 a month. These also would be infect the coast.” Aframax tankers, with a design capacity of 80,000 to 120,000 metric tonnes, larger than the Panamax – Owen Sigurdsson, 19 tankers (60,000 to 80,000 tonnes) that have been loading at Westridge until now. The scenario is further complicated by the shallow depth under the Iron Workers Memorial Bridge and the train bridge at Second Narrows; even at daytime high tide (the only time tankers of this size are permitted to pass through the narrows), the Aframax can only be loaded to 85 percent capacity for fear of having inadequate clearance. The NEB has ruled that these tankers must have three escort tugs as they pass through this section and the harbour traffic in Burrard Inlet and under the Lion’s Gate Bridge. A single escort tug must then accompany the tanker the full distance through the Salish Sea, clearing Vancouver Island, but these precautions are not sufficient to allay the concerns of many who spoke to the panel, in Vancouver, North Vancouver and on Vancouver Island. As Mayor Robertson concluded, “Vancouver is essentially being asked to ‘take all of the risk.’ But it’s not worth the risk.”

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The panel’s next stop was in North Vancouver, where more than 80 attendees gathered from the municipalities of West Vancouver District, North Vancouver District and North Vancouver City. As in Vancouver, and as we would later encounter in Victoria, the people of the North Shore said they felt like they had been largely ignored in the NEB process, that they saw little prospective benefit from the pipeline project and significant risk.

In an opening round table meeting with municipal officials, the input concentrated on widespread misgivings about the role of the National Energy Board in recommending approval of the project. Presenting on behalf of the District of West Vancouver and the City of North Vancouver, solicitor Rachel Vallance said: “The NEB process has failed the municipalities on (two) fronts: it has not truly considered or addressed the specific evidence that was put before the Board from professionals and experts about how our communities would be impact by the project, and it has not shown us that we can rely on our regulator in this instance to inquire into, understand and resolve matters that are fundamental to protecting the public interest, before allowing this project to go ahead.” By way of example, Vallance said that NEB’s decision to disallow oral cross examination of witnesses “really affected the ability of parties to examine and resolve issues.” And worse, when municipalities tried to test evidence, or merely to get questions answered, neither the proponent nor the NEB responded as the municipalities would have hoped. Faced with a 15,000‑page original proposal from Trans Mountain, Vallance said municipalities struggled, in very short time frames, to come to grips with the information. They had just one month to submit questions, and when they forwarded 168 questions they “got very little in response.” (This comment was repeated many times during panel meetings across B.C. and Alberta; many intervenors in the NEB process reported being overwhelmed and said they felt largely ignored in their requests for further information.)

At the municipal level, many on the North Shore reiterated Vancouver presenters’ concerns about spill risks, on which count Vallance said the NEB failed again in its regulatory responsibilities. “Excluding the review of spills with low probability but high consequence does not meet the standard,” she said. “The Board had an opportunity to put public concern to rest by analysing these risks and failed.” A report filed by the two municipalities went on to say this concern was made worse because “The coast of southern British Columbia is already recognized as one of the two most likely areas for a major oil spill in Canada, based on existing shipping levels.” The report also questioned whether the NEB had examined “the true potential increase in diluted bitumen transport the municipalities might eventually face along their shorelines. “The Board’s regulatory review was restricted to the ‘applied for’ capacity of 540,000 barrels a day, despite the fact that the new pipeline is designed to carry 780,000.” That is to say, while Trans Mountain has applied to triple current capacity from about 300,000 barrels per day to 890,000, if this project was approved, it would actually have capacity to almost quadruple current shipping levels. Vallance characterized this as direct regulatory omission, as with the decision that the NEB would not consider upstream or downstream greenhouse gas emissions or exercise direct responsibility for the impact of shipping. “In light of the outstanding issues,” she concluded, “the project cannot be determined to be in the public interest or safely approved.”

Janice Edmonds, founder of a group called North Shore NOPE (No Pipeline Expansion), spoke of her group’s frustration that they had been denied NEB intervenor status because the North Shore was

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regarded as outside the affected area because the “One particular concern we share with pipeline itself wouldn’t touch the North Shore and local governments in our area is the need because the NEB ruled that is jurisdiction ended to model the effects of a large oil spill in with the pipeline and that shipping dangers were the Burrard Inlet and English Bay... such a the responsibility of other authorities. Edmonds, a modeling is imperative because, while the nurse by profession, spoke at length of the health probability for such an event is very low, its risks from potential spills and from the normal health consequences could be very large, operations of a busier export terminal, even if no especially if the region is not prepared.” spill occurred, for example from cumulative small spills at the loading terminal, and from the noise, – Dr. Patricia Daly, Chief Medical Health Officer, Vancouver Coastal light and air pollution from shipping. Edmonds told Health and the panel of the challenge of making sense of Trans Dr. Victoria Lee, Chief Medical Health Officer, Mountain’s 15,000-page application, especially with Fraser Health Authority no funding from the company or the NEB to pay for expert or legal analysis. She posted a particular concern that Trans Mountain had not shared information on the impacts to regional air quality, and reiterated concerns that the company had not modelled large spills or shared its emergency plans with municipalities or emergency responders.

Presenters also pointed out that the impacts of cumulative spills and air pollution are magnified “The Vancouver harbour is the second most because the Westridge terminal is located so deeply important port on the West Coast. It doesn’t into Burrard Inlet. While most major international belong to the people of the North Shore or ports site dangerous cargo terminals as close to of Vancouver alone; it belongs to all of the the open ocean and as far as possible away from people of Canada.” population centres, the Westridge terminal is more – George Reynard, North Vancouver than 15 kilometres into the harbour, at a point where the inlet becomes fjord-like, trapping the prevailing winds, and on the far side of a shallows, which discourages the effective flushing of tidal action. The site is also close to recreational areas and in sight of residential developments on both sides of the harbour. On the North Shore, Erian Baxter runs Deep Cove Kayaks, which has operated just across the arm from Westridge for two generations, employing 100 people and renting boats to 35,000 visitors a year. Baxter, who spoke in the Public Town Hall, said tourism business like hers generates more than $14 billion in annual revenue in B.C., adding, “It’s mind-boggling that we would contemplate putting that at risk.”

On the south side of the harbour, Jo Ledingham said she had lived in a waterfront cottage in Belcarra since 1964, directly facing the Westridge terminal. She said that when tankers pull in “and the anchors go down, everyone is aware. At night, it’s never dark anymore (as tankers leave their lights on 24/7) and it’s never quiet,” a situation she said would get much worse as exports increase. That could be especially true in the winter or in bad weather. Because the Aframax tankers can only transit the Second Narrows at daytime high tide, Port Metro Vancouver officials say that several could get caught on the terminal side when the days are short and the weather is uncooperative.

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The panel’s last stop was in Victoria, where more than 500 attendees signed up during four meetings over two days. As in the Burnaby, Vancouver and on the North Shore, municipal officials on Southern Vancouver Island said they were concerned about the impact of the pipeline (and related shipping), unhappy to have been largely ignored in the NEB process and grateful that the Ministerial Panel was providing an avenue for input.

Victoria Mayor Lisa Helps pointed out that tourism is a $2-billion industry that employs 22,000 in her city. She said: “We accept a certain level of risk, but any benefits of this project are far outweighed by the risks.” Although the shipping channel south of Victoria is busy, and runs close enough to threaten a popular and beautiful coastline, Helps said there is no coordinated oil spill response and there has been no first responder training. Her staff has not been invited to participate with WCMRC. Maja Tait, the Mayor of the smaller community of Sooke, west of Victoria, said her council added the Trans Mountain proposal as a ballot question during their 2014 election and found that 70 percent of voters were opposed due to effects on ecological tourism, crabbing, sports fishing, the effects on natural areas and the effects of noise pollution on the orca population.

In Victoria, as in Burnaby, Vancouver and North Vancouver, the largest crowds gathered for the public town hall meeting. In each of these locations, there were more presenters than we had time to hear, even after extending the session as much as time and circumstances would permit. There were large public protests in Vancouver and Victoria and passionate, often emotional presentations during our sessions. As will be evident in the next section, which offers a further survey of some of the issues raised in the town halls, the level and quality of input was excellent. Citizens, academics and other interested parties have all done a considerable amount of research on the proposed pipeline project and if they have not come to agreement on the answers, they have been exhaustive in identifying reasonable questions.

However, there was no question, in any of these sessions, about the depth of concern that presenters have about the environmental impact — not least of which as it pertains to climate change. As you will see below, it is most widely regarded as one of the great gaps in the NEB process. Nor was there, ultimately, a question as to the general takeaway from these sessions. Once again, opinions in British Columbia vary by geography, demographic and economic interest. The panel heard from strong pockets of support. But in the Lower Mainland, especially among elected officials representing those close to the pipeline route or to the ocean, there are clear voices raised in opposition. In Burnaby, Mayor Derek Corrigan said: “The Prime Minister says that governments grant permits but communities grant permission: well, we don’t.” In Vancouver, Mayor Gregor Robertson said: “The flawed process has led to thousands of residents and local First Nations coming together to say that there is no social licence for the Trans Mountain Pipeline Expansion Project.” Terry Beech, the Member of Parliament for Burnaby–North Seymour said: “After speaking with tens of thousands of individuals... I can tell you with confidence that the people of Burnaby–North Seymour on balance stand opposed to this project, and that the community does not currently grant permission for this project to proceed.” And in Victoria, Mayor Lisa Helps concluded, “The project is not in the broad public interest and should be dismissed.”

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ISSUES SURVEY

During 44 meetings in 11 cities, with almost “Opponents of petroleum development have no idea where funds would come from to 2,500 participants and more than 650 speakers, develop alternatives to fossil fuels and I we, as the Ministerial Panel, heard what sometimes suspect that these opponents have no idea seemed like an inexhaustible list of issues — how dependent their lives are on the use of concerns, complexities, points in favour of building petroleum. Most probably are driving their a new Trans Mountain pipeline and arguments internal combustion engine vehicles to the against. Among issues that the public felt the NEB anti-pipeline protests.” had not addressed adequately, there certainly were too many to canvas comprehensively in a document – Bill and Susan Wilson, Saanichton, B.C. such as this. At the same time, the ultimate repetition of themes in the public sessions and in the many thousands of emails suggests that even if we didn’t get to hear from every speaker in every location, the panel’s overview had been thorough. For that, we would like to credit the many hundreds of people who engaged in this process. There were paid experts, lawyers, academics and scientific specialists, and staff members from First Nations and municipalities. Some participants received funding through the NEB to help defray the costs of responding to the Trans Mountain proposal, but many also did the work at their own expense. There were also hundreds of others, individuals and members of volunteer organizations such as Burnaby Residents Against the Kinder Morgan Expansion (BROKE) and North Shore No Pipeline (NS NOPE), some of whom had clearly spent an enormous amount of time informing themselves about the project and related issues and sharing their knowledge. And there were the campaigners from environmental NGOs such as Dogwood, Stand, Leadnow, and the Sierra Club who helped publicize our meetings, encouraged engagement and made their own contributions. We would like to acknowledge all for their efforts and input in identifying issues already noted in previous pages and those in the high-level survey in the pages to come.

MARINE IMPACTS

“In the event of a tanker-based spill, there is approximately $1.3 billion of compensation available. As stated throughout this hearing process, this area is not under the Board’s regulatory jurisdiction. The evidence before the Board indicates that there are competent authorities responsible for this regime, and the Board has no reason to believe that this regime is not functioning as designed.” This quote, which appears in Sections 14.2.1 and 14.7 of the NEB report recommending approval for the Trans Mountain Pipeline, raises one of the most often-mentioned gaps in the NEB’s review process. Although the NEB heard some evidence on marine impacts and made some recommendations on that basis, many presenters said they were upset by the notion that the NEB would so summarily reject responsibility for potential damage to Vancouver’s harbour and foreshore and to the waters of the Salish Sea.

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Marine impacts fall into three main categories: “There is not the risk but the absolute those that occur in the event of a spill, damage that certainty that massively increased super- occurs because of a ship collision (with another tanker traffic will degrade – in some ways ship or with onshore infrastructure) and impacts that outright kill – regions of the Salish Sea. … occur in the normal course of operations. “First, ships are floating industrial plants. Spill risks have been touched on elsewhere. And They leave pollution trails in the course on the question of damage to infrastructure, Brian of everyday operations. They suck up Gunn of the Concerned Professional Engineers and discharge seawater. They burn great noted that “the risk of Aframax tankers colliding volumes of fuel, with emissions settling onto with the Second Narrows bridges has not been the sea and nearby forests. evaluated, despite requests by CPE to the NEB to have this done.” Gunn reports that the railway “Second, they make noise. Big ones make bridge spanning Second Narrows (which is the lots of noise. While we are concerned for effects of noise on whales and dolphins, narrowest and shallowest point of passage on the noise adversely impacts salmon. And more, route to Westridge terminal) “has been struck by in ways that are only now being researched. vessels and knocked out of commission five times in its history. The Aframax tankers in the Trans “Third, vessels leave wakes. An elder Mountain project will be five-times heavier than described how sand bars have been the largest of those vessels and could knock the eroded by ferries washes. Effects are felt bridge right off its foundations and carry the bridge throughout the intertidal zone by creatures superstructure into the highway bridge to the west, in the mud, by eel grass and more. That possibly causing its catastrophic collapse.” intertidal zone has been called the dinner table for First Nations. While wakes from In the category of marine impacts that will super-ferries, displacing 10,000 to 12,000 occur even without accident, one of the most tonnes are damaging, Aframax-class frequently repeated concerns was for the local tankers displace more than 270,000 tonnes. orca population. On this issue, the NEB report The passage of a single tanker is like states: “… the Board found project-related marine passage of 25 super- ferries all at once. shipping to have significant effects on the southern And this proposal is to increase such tanker resident killer whale, and on Aboriginal cultural and traffic seven-fold.” spiritual use of the southern resident killer whale.” – Greg Holloway, Victoria As a species listed on the federal Species at Risk Registry, several presenters suggested that any conscious action that would undermine the killer whales’ chance of survival would be a violation of the Species at Risk Act. Among the specific threats listed on the federal registry, the anticipated increase in tanker traffic addresses many of the issues.

“The greatest threats to Southern Resident Killer Whales include a reduction in prey availability; exposure to contaminants from prey; toxic spills; acute acoustic disturbance (e.g. mid-frequency active sonar, seismic surveying, marine construction); and masking of vocalization and echolocation required for navigation, foraging, cultural and social purposes. Chronic acoustic disturbance, physical disturbance, interactions with commercial fisheries and aquaculture, direct killing and climate

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change are other human-related threats that have “Howe Sound is just recovering from years of potential to jeopardize the Southern Resident Killer industrial abuse. It would be devastated by Whale population.” even a minor spill that drifted into our area. We are outside the prime response area for Biologist Dr. Abby Schwarz, suggested in a spills. The legislated response time is 18 presentation to the panel in Burnaby and in further hours … three tide changes.” documentation submitted online that the project’s acoustical impact is a double threat on this count. Daniel J Rogers, Gambier Island Trust Area Trustee While the effect of noise on marine mammals is well-known, Schwarz submitted research showing that shipping noise is also a hazard to fish and “Currently the federal government is specifically to Pacific herring, an indicator species contributing to an endeavor to make the that is “at the centre of the B.C. coastal marine food Salish Sea a UNESCO World Heritage Site, web.” Schwarz also reported that her research had preserving it and encouraging its creatures demonstrated that the larger the vessel, the greater to bounce back. How does that square with the impact in part because they generate louder, the industrial corridor that the Kinder Morgan lower frequency noises that are the most disruptive. proposal will create? Any argument that finds these two compatible with each other Peter Luckham, chair of the Islands Trust, is bogus.” resubmitted a report that had gone to the NEB ‑ Bill Henderson (leader of classic rock suggesting that protection of the trust area “merits group Chilliwack) special measures.” The Trust itself exists as a provincial body mandated to “preserve and protect the trust area and its unique amenities and environment.” That area comprises almost 500 islands and islets in the Salish Sea, with 1,363 kilometres of coastline in total and 290 kilometres of shoreline in publicly protected areas and parks. In addition to the environmental damage, “a large oil spill from a project-related marine shipping accident or malfunction could dramatically reduce oceanfront property values, both in the short and long term.”

EARTHQUAKE ZONE

While the Trans Mountain and the NEB reported on the seismic safety standards of the project, many presenters — and especially those who live near the 60+ year-old tank farm in Burnaby — posted their concerns about living in an area at high risk for a major earthquake.

RIGHT ROUTE? RIGHT PRODUCT?

The panel heard from many presenters, in Alberta and B.C., who supported the export of Canadian fossil fuels but strongly opposed a pipeline route through the most densely population part of British Columbia and an export terminal deep in the second-busiest port on the West Coast of North America. As noted elsewhere, some suggested a completely new alternative route to Prince Rupert, but many offered alternatives that would still follow much of the original Trans Mountain right of way. Others suggested a routing to Roberts Bank, which was earlier rejected by Trans Mountain on the basis

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of greater cost ($1.2 billion) and environmental “Now the Puget Sound has historically impact on the Agricultural Land Reserve, the received the vast majority of its crude oil marine foreshore including the Fraser River estuary, from Alaska via tanker. You know that West the bird habitat and the southern resident killer Coast tanker ban? Well, Americans have whale habitat. been shipping up to 600,000 barrels/day of crude from Alaska to the Puget Sound An oft-mentioned alternative was to divert the via the Salish Sea for the last 20 years. pipeline at Sumas, south of Abbotsford along the That Alaskan oil is drying up and besides route of an existing Trans Mountain line that runs to Canadian oil (via the existing Trans Mountain) the refineries and export facilities at Cherry Point, the Puget Sound is going to be getting its in Ferndale, WA. This would obviously require future oil by rail. a closer engagement with U.S. authorities and likely approval from the Environmental Protection “How will they do that? Well, the Agency, but in the words of retired Vancouver infrastructure is almost in place to supply engineer, Douglas Bruce, “the advantages are up to 725,000 barrels/day to the U.S. West clear: It is much closer to the open sea; (and) it has Coast by rail. Much of that oil will travel been handling oil tankers for 45 years since it was along the headwaters of the Kootenay River completed in 1971.” and alongside the Columbia River to the Puget Sound.

OIL BY RAIL “The principal alternative that should be Another frequent argument, also in the category considered is to increase the capacity of Trans Mountain’s existing pipeline from of alternative routes, arose over whether shipping Sumas (B.C.) to the Cherry Point area in oil by pipeline is safer than shipping by rail. Many Washington State, and to export the oil from pro-pipeline presenters said that failing to build there through the Strait of Juan de Fuca the Trans Mountain would, inevitably, push more to Asia.” oil and/or diluted bitumen onto the railways. Blair King, a PhD chemist from Langley, B.C., and an John Boyle, PhD, ORION Environmental Planning & oil-spill remediation specialist, made this point in his Assessment, Vancouver online submission: “Pipelines have 4.5 times fewer accidents/spills than oil-by-rail and while every oil spill represents a catastrophe, spills from pipelines do not hold a candle to the apocalyptic aftermath of rail accidents. People like me can clean up the Kalamazoo River, but we can’t do anything to restore all those lives lost in Lac-Megantic.”

Pipeline opponents offered two counterpoints. In a report from the Canadian Centre for Policy Alternatives, David J. Hughes said: “Bitumen transported by rail requires the use of little or no diluent, which reduces the volume of material to be moved and decreases or eliminates the cost of diluent. Furthermore, bitumen without diluent is a semi-solid with low volatility and is unlikely to result in conflagrations in the event of accident such as the Lac-Megantic rail disaster.” And Will Horter, of the Dogwood Initiative, told the panel that while the railways were moving much larger quantities of fossil fuels before the price fell off in 2014, there is currently no rail-based export potential that could match the capacity of the proposed pipeline.

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DILUTED BITUMEN

We have noted earlier one aspect of the case “Dilbit’s diluents or solvents, along with against shipping and exporting unrefined bitumen bitumen’s sulphur containing compounds, — especially if the target market is in Asia — where aromatic hydrocarbons and toxic metals, there is currently no established refining capacity. are a potent mixture, with each component magnifying the toxicity of the others... Early Many presenters argued that if a new refinery is exposure can impair a child for life, and to be built, and new jobs created, it should be exposures at any time may contribute to built close to the source of the resource, to save chronic disease and death.” transportation expenses and to keep those jobs in Canada. But in both Alberta and, especially, in ‑ Meg Sears PhD, Adjunct Investigator, Children’s B.C., the panel heard a huge number of presenters Hospital of Eastern Ontario Research Institute, express concerns about the dangers and Ottawa environmental toxicity of diluted bitumen.

Burnaby businessman John Clarke told the panel that he had been alarmed to receive a brochure from Kinder Morgan warning about the potential for a petroleum-product spill in his neighbourhood (near the Trans Mountain tank farm). The brochure, a copy of which he provided to the panel, says that if you smell petroleum odours or rotten eggs — or see “dead or discoloured vegetation” — that you should, “Leave the area immediately, on foot, and in an upwind direction.” It further warns not to start a vehicle or use any appliance that could act as an ignition source — including a cell phone. Clarke said he found the warning chilling and that it inspired him to begin research on the properties of diluted bitumen. This is not necessarily a simple matter, as different companies use different diluents. But for reference, the fact box below contains a description from a 2014 Cenovus Energy Inc.

Toxicological Properties of Product

From: Cenovus Energy Material Data Sheet on the “Condensate” that it ships under the name “Petroleum Crude Oil (contains Hydrogen Sulfide)”

Routes of Entry:

Skin Absorption: Yes Eye Contact: Yes Chronic: Yes Skin Contact: Yes (liquid) Inhalation: Acute: Yes Ingestion: Yes

Effects of Acute Exposure: Initial odour of H2S detected at about 0.1 ppm. Gas/vapour may cause irritation of eyes, nose and throat, dizziness and drowsiness. Hydrogen sulfide may cause a loss of sense of smell at 100 ppm.At higher concentrations, severe irritation of eyes, nose, throat and lungs, dizziness, headache, nausea, unconsciousness and respiratory failure may occur. Death may result if not revived promptly. Contact with skin may cause irritation and possibly dermatitis. Absorbed through intact skin. Contact of liquid with eyes may cause severe irritation and possible damage.

Effects of Chronic Exposure: Due to presence of benzene and n-hexane, long term exposure may increase the risk of anaemia, leukaemia and nervous system damage.

Carcinogenicity: Yes Teratogenicity: Possibly Reproductive Effects: Possibly Mutagenicity: Possibly

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document describing the condensate that it ships “My crew and I were exposed to benzene, under the name “petroleum crude oil (contains trichloroethylene, methyl ethyl ketone in hydrogen sulfide).” very small amounts. The damage caused to me was catastrophic, liver damage, kidney Further information suggests that the blend damage, stomach problems, breathing contains pentanes, n-hexane, butanes, benzene problems, just to mention a few. To say the and hydrogen sulfide and is explosive in volumes least, this life has not been easy since that ranging from 0.6 percent to 44 percent. (By exposure. But still I fared better than the comparison, natural gas is explosive only between other firefighters, as they have all passed on, five percent and 15 percent.) Even diluted, the some at a very young age and all far before bitumen mix is still much more viscous, which their time. means that it is pumped at much higher pressure — as much as 1,400 psi rather than 600 psi for regular “This pipeline and the tankers will carry crude. As a result, as presenter Steve Bramwell told huge amounts of deadly chemicals mixed the panel in Chilliwack, “if there is a release, it’s not together in the bitumen and the diluent. so much a spill as a blowout.” Considering the high risk of a spill from a pipeline, the tank farm, Westridge Marine This could explain the wide spray of fuel after the Terminal, and the tankers, the probability excavator struck the Trans Mountain line in Burnaby of hundreds or thousands of people being in 2007. Although the spill was reported at the time exposed to the vapours from the bitumen, as being “crude oil,” a recent academic paper on the diluent and the dispersant, it will be the properties of dilbit in the environment (A Study a nightmare for those people, as it has been for the people affected by the spill in of Fate and Behavior of Diluted Bitumen Oils on Kalamazoo, Michigan, Mayflower, Arkansas, Marine Waters, Witt O’Brien’s, Polaris Applied Alaska and the Gulf of Mexico. They are still Sciences, and Western Canada Marine Response suffering, years later and I don’t want that to Corporation) stated: “Two documented spills of happen here.” dilbit into an aquatic setting are the 2010 Marshall Spill (Kalamazoo, MI) from the Enbridge Pipeline ‑ Steve Edmonds, former Vancouver firefighter (NTSB 2012; see also Enbridge Line 6B Response) and the 2007 Burnaby Spill (Burrard Inlet) from an excavator puncture of the TMPL. [...] the Burrard Inlet incident was an Albian heavy blend that reached the estuarine waters and shoreline near the TMPL Westridge Terminal.” (Albian Heavy is listed as a “dilsynbit,” partially upgraded bitumen.)

Presenters stated concerns about dilbit on three “According to NEB’s assessment, the fronts. Emergency responders were concerned tank farm could pose significant life and about the dangers of fighting fires or managing health risks, but according to their view spills when the noxious volatiles in the blend, the risk is acceptable. I am asking you creating a potentially deadly threat to anyone in what mathematical formula did they use to the vicinity. Public health officials and members of calculate how much those thousands of lives the public expressed concern about the long-term and their health worth?” health risks given the industry caution that the mix Anna Berke, Burnaby can cause cancer and birth defects. Others said

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they were concerned about the spill risks as early research has shown that dilbit is more difficult to clean up in the environment. Many presenters also said they did not feel that the NEB had taken this issue seriously enough, especially as it declined to consider what was then the most recent research, a paper by the National Academy of Sciences, Spills of Diluted Bitumen from Pipelines.

This is a subject area beyond the panel’s expertise “Spills of diluted bitumen pose particular and one in which a good deal of additional research challenges when they reach water bodies. has occurred even since the NEB issued its report, The residues will start quite early to but there appears, on one hand, to be a lively submerge or sink to the bottom of the water academic conversation about how much more body. complicated a dilbit spill might be in the long term. In context, it’s interesting to note that, however “During the initial days of spill response, much more difficult it is to clean up dilbit over the major components of concern to regular crude, the rescue crews may be measuring human health in crude oils include the from a low bar. In a 2013 review of ship-source oil volatile compounds - benzene, toluene, spill preparedness, Transport Canada reported: ethylbenzene, and xylenes (collectively “Evidence suggests that mechanical recovery rates, called BTEX) and hydrogen sulfide (H2S) in optimal conditions, are usually only between 5% - that can result in acute and sub lethal and 15% of the oil spilled.” effects via inhalation exposure. Benzene is also a well-known human carcinogen.”

AGE OF INFRASTRUCTURE Bede Kosman, North Vancouver, quoting from the National Academy of Sciences Paper, When the original Trans Mountain Pipeline was Spills of Diluted Bitumen from Pipelines commissioned in 1953, the company is reported to have estimated a 50-year life expectancy. Several presenters said they are concerned that the line and tank farm are still in operation after 63 years. For example, Robert McCandless, a supporter of pipeline development who lives in Delta, B.C., said in an online comment, “Kinder Morgan’s application should have started with a risk assessment for the existing pipeline; or the NEB should have ordered the proponent to do it. Protecting the public and environmental safety in the long term requires Kinder Morgan to receive approval to build Line 2, but only in accordance with first eliminating risks in Line 1.”

ECONOMIC ARGUMENT

“The principal reason a society can sustain itself or grow sustainably is low-cost energy and access to such low-cost energy. We will not have a viable technical alternative to hydrocarbons and new nuclear power for the next 50 years. If you lose sight of this reality, you will slide all Canadians and their descendants further into an irretrievable disaster of impossibly high energy costs and undesirable social upheaval.” The panel received this as an online comment from Tim Webber, who described himself as a chemical engineer trained at the University of Toronto. It described well a common argument that the pipeline is needed and makes economic sense.

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Yet, Robyn Allan, a former President and CEO of “The NEB states that it accepts that Kinder the Insurance Corporation of BC and, before that, Morgan has received requests for increased senior economist at the BC Central Credit Union capacity and has signed long-term contracts has done considerable research that challenges with 13 shippers, but, incredibly, the Board the economics of the Trans Mountain proposal, did not actually see those contracts. One of for the industry and for Canada. For example, she its 157 conditions is that Kinder Morgan file documented that the companies that signed take- them 90 days prior to construction. This is or-pay shipping contracts in support of the Trans the crux of the Board’s finding of economic Mountain Pipeline did so before the 2014 fall in viability, and yet it has not even verified oil prices. the evidence.”

And while demand for pipeline capacity has since Carol Baird Ellan, former Chief Judge of the fallen commensurately (Allan documents 2.6 million BC Provincial Court barrels/day of proposed oil sands production that has been cancelled or deferred since 2014), the signatories are contractually bound to use the new pipeline should Trans Mountain build it — and are prohibited by the same contracts from speaking out against the pipeline in the meantime. Allan points out that her argument that new pipeline capacity is not needed accords with a leaked federal Finance Department document that suggests Canadian oil companies will not need new pipeline capacity before 2025 at the earliest.

As for an anticipated increase in government revenue, Allan points out that Kinder Morgan has been clear in its annual report communications to shareholders that it pays very little tax on its Canadian operation: during the five years between 2009 and 2013, Kinder Morgan reported average income of $172 million on which it paid an average $1.5 million in taxes. Accordingly, any government windfall would have to come from increased income on oil sales.

On that count, University of British Columbia political scientist (and Acting Dean of Arts) Kathryn Harrison wrote, in her submission to the panel: “The economic analysis underlying the Trans Mountain proposal does not take into account the potential for policy changes to impact global demand for “The economic argument is weak at best. oil, particularly Canada’s relatively expensive and There has been an attempt to oversell the carbon-intensive oil. It is not credible that policies importance of oil sands jobs and revenue affecting demand for oil will remain stagnant for to the Canadian economy. While exports of the 20-to 30-year life of the proposed project … It crude oil and petroleum products account is already projected that petroleum consumption for 25% of Canada’s exports, production of in California, Japan and South Korea will decline. crude oil represents only 3% of the GDP and In the case of China and India, there is greater all energy sectors combined contribute only uncertainty to be sure, but it is a fundamental flaw 1.6% to Canadian employment.” of the TMX proposal that it does not even consider the implications of possible climate policy initiatives Peggy L. Olive, Ph.D. Scientist Emeritus, Salt Spring Island, BC in making the economic case for the project.”

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David Hughes, from the Canadian Centre for Policy Alternatives, also makes a case that there may actually be no windfall from gaining access to an international point of export (thereby overcoming the so-called price discount received from a U.S. importer). In a CCPA report submitted to the panel, he writes: “Although oil is a globally priced commodity, between 2011 and 2014 the international price of oil (Brent) was significantly higher than the North American price (West Texas Intermediate or WTI), which caused enthusiasm for “tidewater” access to allow overseas exports. This premium, which was primarily a result of the rapid increase of U.S. tight oil production and a lack of pipeline capacity to move it to the Gulf Coast, has largely disappeared as a result of new pipelines coming online to relieve congestion, coupled with an end to the U.S. ban on oil exports. Canadian oil, as exemplified by the Western Canada Select (WSC) benchmark, is a lower-quality grade (due to its heavy, highly viscous nature and high sulphur content) that requires more effort to refine. It also comes with higher transportation costs and therefore commands a lower price than the WTI benchmark. This discount will occur regardless of where the oil is sold.”

CLIMATE CHANGE

“The Board does not intend to consider the environmental and socio-economic effects associated with upstream activities, the development of oil sands, or the downstream use of the oil transported by the pipeline.” — a NEB Hearing Order, Page 18.

As the Ministerial Panel travelled through Alberta and B.C., few “gaps” in the National Energy Board process drew more attention than the NEB’s finding that it would not consider the influence of the proposed pipeline on greenhouse gas emissions or climate change. Presenters, in Alberta and B.C., “The vocal and aggressive anti-pipeline said that a decision of this magnitude, and with activists represent a very small proportion of these wide-ranging and long-lasting climate the Canadian populace. Their ideologically implications, should only be made in the context of based arguments against pipelines are, in a national climate plan, especially in light of the fact, a stalking horse for their wish to stop commitments Canada made in Paris in 2015 to the use of fossil fuels. They are incapable show international leadership in an effort to keep of compromise.” global warming to less than 1.5 degrees. The following (along with other quotations in the boxes Charles Webster, Kamloops, B.C. inset) are a taste of the reaction that we heard in almost every location — and certainly in every Canada cannot, on the one hand, sign on meeting in British Columbia. to the Paris Agreement, that basically calls “Canada’s political leaders and media elites [are] for the phase-out of fossil fuel use globally, still, for the most part, in denial about climate and at the same time approve permits to construct a pipeline that will result in change. Not outright denial of climate science, upstream AND downstream fossil emissions but a more insidious form of denial that accepts for a very long time into the future. The circle the science but refuses to acknowledge the cannot be squared. implications.” — Marc Lee, economist for the Canadian Centre for Policy Alternatives Glen Estill, Bruce Peninsula, Ont.

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“To embrace the economic viability of this project is to self-consciously make an economic bet on a world of catastrophic climate change that the Government of Canada itself has explicitly committed to avoid.” — Kathryn Harrison, Professor of Political Science at UBC

“Instead of putting all of this time and energy into the expansion of a pipeline, maybe we should use that time and money for exploring new options that are not devastating to the planet. I am 16, and when all of you are old and grey, my peers and I will either be thriving on your legacy, or forced to clean up the mess you left behind.” – Avery Pawson, Burnaby

“Canada needs a plan for how we’re going to reduce our GHGs in line with our international commitments under the Paris agreement, and until we see how that can be done, there should be no expansion of oil sands and no more pipelines.” — Cheryl Kabloona, Chair of the Kamloops Chapter of the BC Sustainable Energy Association.

This position was not unanimous: one presenter asked why the fossil fuel infrastructure industry should be help responsible for upstream GHG emissions when other relevant industries — automobile manufacturing, for example — were not. But there was widespread concern that Canada should be making the decision in the context of a larger climate and/or national energy plan.

Vancouver lawyer David Gooderham submitted “Before the Liberal Government a comprehensive paper on this topic, The Kinder contemplates giving final approval to Morgan Pipeline and Canada’s Chances of Cutting the Kinder Morgan project — or to any Total Emissions by 2030. In it, he made the argument proposed pipeline — a science-based that allowing the oil sands to continue expanding — review must answer the basic question: in effect, promoting expansion by approving the Trans is the current projected expansion of the Mountain Pipeline — will make it impossible to meet oil sands production compatible with Canada’s international climate commitments, or will Canada’s commitment to reduce our total force every part of the economy other than the oil annual emissions 30 percent by 2030?” industry to make devastating cuts to reach Canada’s targets. Gooderham pointed out that the current David Gooderham, Vancouver Lawyer commitment, to cut Canadian emissions 30 percent from 2005 levels by 2030, means that we are aiming for a total emissions target of 524 megatonnes. However, at the same time, the oil sands industry is planning to double its production between 2014 and 2040. By Gooderham’s calculations, in order to reconcile those two trajectories, all of the non-oil and gas sectors of the Canadian economy would have to cut their emissions by 49 percent, while the oil sands continued to grow. Even with Premier Rachel Notley’s proposal to cap oil sands emissions at 100 megatonnes (up from 62 in 2013), that would still require a 45 percent cut in emissions from all other sources. Gooderham concludes:

The question of upstream emissions was, of course, subject to an Environment and Climate Change Canada report released in the same month that this panel received its mandate. Another presenter, Simon Donner, a professor of Climatology at the University of British Columbia, took direct issue with that report and particularly with the conclusion that incremental upstream emissions are likely to be negligible. The Environment Canada report, Trans Mountain Expansion Project: Review of Related Upstream Greenhouse Gas Emissions Estimates, states:

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“… if oil sands production were to not occur in “It was clear that [the] NEB as regulator and Canada, investments would be made in other agency responsible for the review of the jurisdictions and global oil consumption would project has been captured by the petroleum be materially unchanged in the long term in the industry ... no amount of public consultation absence of Canadian production growth.” will turn a highly flawed project review by the NEB into a foundation for a sound evidence- Donner described this as typical of the tragedy-of- based decision.” the-commons analysis in which, if everyone in the world decides that the impact of their contribution Joseph Gilling, resident of Vancouver, former World is irrelevant in a global context, then everyone will Bank energy economist continue to expand. As Donner says, “In sum, the analysis in the Environment and Climate Change Canada review is mathematically inconsistent if applied broadly.”

Simon Fraser University communications professor Bob Hackett characterized the analysis somewhat differently. He said, “That’s the drug dealer defence. If we don’t do it, someone else will.”

PUBLIC CONFIDENCE IN REGULATORY PROCESS

While the panel’s mandate was to engage the public and to identify “gaps” in the National Energy Board review process, we would be remiss if we failed to report the large number of complaints about the NEB process and performance and the degree to which the public reports a loss of confidence in any recommendation that the NEB might have rendered. For example, many presenters in the City of Burnaby — the population that would see the greatest disruption and, potentially, the greatest risk if the new pipeline were to be built and the tank farm doubled in size — complained that the NEB held no hearings in their community. Individuals, municipal authorities, First Nations and organizations of all kinds reported the difficulty in trying to manage, understand and respond to a 15,000-page Trans Mountain proposal, and complained further at having no opportunity to cross-examine Trans Mountain or its experts. They also said they were disappointed that the NEB did not compel Trans Mountain to answer questions more fully — or sometimes at all. And again, it bears noting that these complaints did not originate only from interest groups that might have been ideologically hostile to the project; even municipalities that ultimately endorsed the project often complained about the process.

Dr. Thomas Gunton, Director of the Resource and Environmental Planning Program at Simon Fraser University conducted a best-practices study on the NEB process and, in a submission to our panel, reported what he described as key information gaps:

1. Failure to scope the review to include all significant adverse effects (e.g. GHG emissions)

2. Failure to assess accurately the adverse effects that are included in the NEB process (e.g. oil spills, excess pipeline capacity)

3. Failure to assess adequately the need for and alternatives to the TMEP (Trans Mountain Expansion Project)

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4. Failure to compare costs and benefits of the TMEP in any systematic way to determine the public interest

5. Failure to include provision for compensating those made worse off

6. Failure of the process to command the confidence of stakeholders

The following are quotes from a selection of other parties and presenters who expressed dissatisfaction with the NEB process or performance:

“I decided to withdraw as an expert Intervenor because I came to the discouraging conclusion that the Board was on a predetermined course of action to recommend approval of the Project.” – Marc Eliesen, former President and CEO of BC Hydro, Chair of Manitoba Hydro, Chair and CEO of Ontario Hydro, and Deputy Minister of Energy in the Provinces of Ontario and Manitoba

“Almost all of the conditions proposed by the NEB are generic and are not performance related … many conditions call for the submission of a report or that consultations with stakeholders take place. These conditions do not necessarily define any kind of metrics that those reports and consultations have to meet.” - City of Coquitlam report to council, copied to panel online portal.

“This process has been so fundamentally flawed that it risks not just damaging our economy, environment and [the] health of Vancouverites, but indeed the faith of our residents in democracy.” - City of Vancouver Presentation and online submission

“The [NEB] Report is nothing more than an endorsement of Trans Mountain’s application, not a scientifically rigorous assessment of the project, upon which a public interest determination can be made.” - Burnaby Mayor Derek Corrigan

“Their [Trans Mountain and its environmental consultants] reports completely fail to adequately determine the extent of Serious Harm to fish habitat, under theCanada Fisheries Act. They have specifically, repeatedly and unequivocally stated that there would be no instances of Serious Harm along the entire line ….With the best will in the world that is plain ludicrous.” - Annabel Young, Director of the Salmon River Enhancement Society

“Raincoast and Living Oceans are concerned that the Board avoided a full review of the Project’s marine impacts, which was required by the Canadian Environmental Assessment Act, 2012 (“CEAA 2012”) and the Species at Risk Act (“SARA”).”– Legal counsel for the Raincoast Conservation Foundation and the Living Oceans Society

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INDIGENOUS ISSUES

In chronicling public attitudes to the Trans Mountain Pipeline expansion project, we as the Ministerial Panel have observed so far sweeping differences – and myriad complexities – in Alberta and British Columbia. But the range and diversity of opinion, and of political jurisdiction, are yet more complex among the Indigenous groups whose lands and interests lie in the path of the proposed pipeline. The federal Crown estimates that the Trans Mountain right-of-way crosses the traditional territories of 115 Indian Act bands or Métis communities, and the NEB reported that Trans Mountain’s own “final list included 120 Aboriginal groups, two non-land based B.C. Métis groups, and 11 Aboriginal associations, councils and tribes. These communities are highly diverse in their geography, language, culture, population size, economic conditions and in their legal and political circumstances. Some have historic treaties (Treaty 6 and Treaty 8 in Alberta and the Douglas Treaties on Vancouver Island), the Tsawwassen First Nation has a modern treaty, and much of the route through British Columbia is covered by un-ceded territories on which there are no treaties. Yet, as the courts have affirmed, all First Nations have constitutionally protected rights. And, as we have seen from the Federal Court of Appeal decision that quashed the NEB approval for Enbridge’s Northern Gateway pipeline in June 2016, failing to consult appropriately with these groups has the capacity to bring a project of this nature to a standstill.

Although not part of the ongoing federal “First Nations have had their lands raped consultation process, the panel engaged with of their resources through mining, forestry, Indigenous groups across both provinces, hearing natural gas and oil (for) far too long. It is time from 22 First Nations, 4 First Nation organizations for First Nations to become equal partners and with 15 individuals who self-identified as First in major projects like this in order to get the Nations. The panel is grateful to First Nations First Nations to fully agree and participate in participants, especially those who had to stretch the consultation process, while First Nations their own resources in order to participate. These still can be stewards of the land.” small round tables were extremely valuable in Brian Titus, Seabird Island Band, helping the panel to a deeper understanding CEO of the Sqewqel Development Corp. of indigenous issues. Given the range in those presenters’ rights and world views, it was not surprising their positions on the pipeline also varied widely — from absolute rejection to formal support. But there were common threads from presenters in every jurisdiction. Even among those people who had negotiated benefit agreements and signed letters of support with Trans Mountain, most said that their rights were not respected and that their concerns about impacts were ignored or, at the very least, minimized. Consistently, First Nations also stated that the scope of their rights and title were not considered appropriately — that Aboriginal rights and title are comprehensive and cannot be constrained to potential environmental impacts on specific areas or resources. And most people reported that they are tired of seeing their communities struggle with grinding poverty and alienation from their land and their way of life while others, who are not Indigenous and often not even residents in the neighbourhood or the country, grow more wealthy developing the resources on First Nations territory.

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For most Indigenous presenters who spoke to the panel, the fundamental concern was how they were able — or not able — to participate in decisions that have major impacts on their territories and their people. As many noted, First Nations rights in this regard are no longer in doubt. After generations of engagement, direct action, and litigation, First Nations rights and title are now established in law. In the words of Tyrone McNeil, a board member of the Seabird Indian Band’s Sqewqel Development Corp. near Chilliwack, when you look back at Supreme Court of Canada decisions, including Delgam Uukw, Haida and Williams, “The court doesn’t give us title; it recognizes our title.”

And yet, presenters said, the government of Canada has failed to make the necessary efforts to reconcile “I felt that we were not a respected level of Aboriginal and Crown title and has consistently government — more an annoyance.” pushed the responsibility to consult onto others. Lee Francoeur, legal counsel for the Sunchild First Kwantlen Councillor Tumia Knott Nation, said this is a common frustration.

“Government pushes consultation off to industry. And then industry says, ‘If you have issues with government, don’t take that up with me.”

In this case, the National Energy Board (NEB) became the principal government surrogate. As stated in the NEB report (page 45):

The Board notes that the Government of Canada indicated in letters to potentially affected Aboriginal groups that it is relying on the NEB process to the extent possible to meet the Crown’s duty to consult Aboriginal groups. While the Board itself does not owe the duty to consult, the Board is of the view that this reliance is appropriate given the Board’s robust and inclusive process, its technical expertise, and broad remedial powers with respect to Project-related matters.

Further, the NEB pronounced the consultation adequate:

Having considered all the evidence submitted in this proceeding, the consultation undertaken with Aboriginal groups, the impacts on Aboriginal interests, the proposed mitigation measures, including conditions to minimize adverse impacts on Aboriginal interests, and Trans Mountain’s commitments to and Board-imposed requirements for ongoing consultation, the Board is satisfied that its recommendation and decisions with respect to the Project are consistent with section 35(1) of the Constitution Act, 1982.

(NEB Page xii)

The new government of Canada has since reaffirmed its responsibility and willingness to consult with First Nations on the potential impacts “Kinder Morgan cannot take away Crown’s on their rights and title. As mentioned in previous responsibility to consult.” chapters, a concurrent consultation is ongoing and Tyrone McNeil, Seabird Indian Band will result in another report to Minister Carr prior to a government decision on this project.

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But numerous indigenous presenters made an effort, in person and in online communication, to drive home the point that appropriate consultation has not occurred. Writing on behalf of the Kwikwetlem First Nation (KFN) near Coquitlam, B.C., Chief Ron Giesbrecht said, “KFN has not been meaningfully consulted.” He also said, “The NEB’s review … did not assess, nor did it purport to address or assess, potential adverse impacts to our rights and title and the proponent Kinder Morgan repeatedly told us that they were not responsible for looking at impact to our rights and title. Instead, Kinder Moran, and the Crown, have taken a very generalized approach to understanding impacts.

Chief Giesbrecht said the shortcomings related both to process and to a failure to assess adequately the substantive environmental impacts of the new pipeline. He said there was no baseline study and no assessment of impact to fisheries, sedimentation and related matters, regardless that a long section of the pipeline runs along the Fraser River, “the Kwikweltlem’s last remaining fishing area (which) provides critical habitat to numerous fish species still relied upon by the nation.”

Tumia Knott, councillor for the Kwantlen First Nation, expressed a supportive position when she said, “The NEB’s bureaucratic, empty and meaningless process … failed us considerably. It did absolutely “It’s not consultation until we actually nothing to address rights and title.” are heard.”

On Vancouver Island, Scia’new Chief Robert Chips Mavis Underwood, Tsawout First Nation also complained about the lack of baselines studies in the Salish Sea (a complaint that also arose from First Nations and others in the Vancouver Harbour). Chief Chips said, “Scia’new does not want to see an increase in tanker traffic through out territory, but believes that such an increase is inevitable. To help protect our interests, Scia’new engaged in negotiations directly with Kinder Morgan. Those negotiations were constructive and resulted in a Mutual Benefits Agreement that addresses some of Scia’new’s economic concerns.”

This raises the sometimes-controversial question of whether the signing of a benefit agreement — or even a letter of support — actually indicates an unconditional approval of the pipeline project. The NEB reported that, “Trans Mountain said it executed 94 agreements, including LOUs (letters of understanding), … capacity funding, and integrated cultural assessments with an aggregate value of $36 million. Trans Mountain said it received 30 letters of support from Aboriginal groups.” And Trans Mountain has maintained publicly, and in its briefing to the panel, that these instruments indicate a significant degree of support in the Indigenous communities along the route. By signing a benefit agreement, “We’re not saying we agree with it. We’re just preparing But some First Nations said that, as with the for the worst.” Scia’new, they signed the benefit agreements or letters of support out of concern that, if they failed Jason Campbell, Seabird Indian Band Councillor to do so, they risked getting nothing at all. Kyra Northwest, of the Samson Cree Nation, said “You can oppose, but with the past government it (a

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proposed project) would get approved either way, so Sampson Cree agreed just to be sure we would “We (the Coast Salish) are all one people. We all eat out of the same plate.” get something.” And Summer Ebringer, of the Enoch Cree First Nation agreed, “The fear is that if Esquimalt Chief Andy Thomas you don’t sign and it goes ahead anyway, you get nothing.” For that reason, Ebringer said, it was also common for First Nations to file Letters of Non- Objection.

There were other common complaints from Indigenous groups that had been involved in, or were on the periphery of, benefit agreement negotiations. One is that the proponent would use the negotiation to minimize its liability. Lee Francoeur said it was common for industry negotiators to start the negotiation by asking, “How many moose or caribou are we affecting?” or “tell us how we’re affecting your berry patches?” Then, they would calculate an economic value for that impact as a baseline for any settlement. But, Francoeur said, “It’s not about the list of plants. It’s the forest!” This is particularly the case in areas where there has already been a considerable amount of disruption – it’s all about the effect of cumulative impacts. Francoeur used the example of oil wells, saying that when the first wells were drilled in the 1950s, it didn’t make much of a difference to the land. But now there are thousands, so every additional well has a correspondingly “Everyone knows you don’t mix oil with water – and you don’t mix children with risk.” greater affect. “It’s death by a thousand cuts,” Francoeur said. “You can’t go anywhere today Carla Peters, Chilliwack without feeling the impact.”

The concern about cumulative impacts also resonated on the West Coast. Several presenters in our Aboriginal round table meeting in Victoria talked about the need to calculate and compensate for the burden that has already been imposed upon the Salish Sea. Esquimalt Chief Andy Thomas said, “We have a treaty (the Douglas Treaty, negotiated in the 19th century) that respects our right to hunt and fish as if we are the sole occupants of this land.” And yet the beaches in his community had been closed all summer because of a “small” diesel spill that occurred in May. And Adam Olsen of the Tsartlip First Nation agreed, “We were promised salmon forever and yet, with complete sadness, they closed the Fraser River salmon fishery this year.” Yet, because of the cumulative effects of all activity in the Salish Sea, he said, “The fishery is a complete disaster.”

Another concern about industry consultation tactics arose from the perception that while First Nations with reasonable capacity might negotiate an acceptable agreement, small First Nations without experts at their disposal are unlikely to receive something comparable. Although industry frequently uses impact benefit agreements during their consultations with First Nations, many Indigenous presenters (and many municipalities) characterized these agreements as bribes, often aimed at the communities that needed them most desperately. In the words of Summer Ebringer, “It’s divide and conquer.”

There are also different views about who in the First Nations community should have decision-making authority: small Indian Act bands or the entire nation; elected councils, hereditary leaders, or citizens

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of these entities. Neskonlith Chief Judy Wilson, who spoke to the panel at our Kamloops session, complained further that the proponent would also negotiate an agreement with a small band whose land is directly in the path of the pipeline, but then freeze out others in the same First Nation who still regard that land as part of their traditional territory. Bonaparte Indian Band Chief Ryan Day agreed on this point, saying, “A lot of money is spent for the purpose of splitting us up.”

The question of unequal capacity raises another concern that was posted by First Nations, just as it was raised by municipal governments, environmental and other interest groups and concerned individuals. All found it extremely difficult to respond to the Trans Mountain Pipeline proposal within the rules — and budget — set by the NEB. The NEB recognizes that organizations intervening in hearings often need financial support and in this last round, it made $3 million available to 72 eligible intervenors — 79 percent of whom were First Nations. But, according to everyone who raised this issue with the panel, it was not nearly enough to hire the legal and scientific experts needed to understand the material. Kwantlen’s Tumia Knott pointed out that there were tens of thousands of pages of documents, “and when Kwantlen asked questions, they simply pointed us back to the documents. We simply could not afford to participate in the second round (of hearings).” Without a full understanding of the material, Knott said the Kwantlen felt they could not recommend mitigation measures. “We were not consulted — but marginalized.” Neskonlith Chief Judy Wilson said the money her band received from the NEB was barely enough to cover the costs of attending a hearing, leaving no money for legal or scientific analysis. The Neskonlith also withdrew from the NEB process. Even those who stuck with the process reported that they were unhappy with the result. Andrew Bak, Territory Management Officer for the Tsawwassen First Nation, said he submitted 120 questions “and got meaningful answers back on 12.” He went on, “We’ve invested a lot in technical work, but we didn’t get a response on our comments.” As an example, he said the NEB responded to one query “A deep understanding of Tsawwassen treaty by saying, “Your question about scope is out of rights is not reflected in the NEB report.” scope.” As Tyrone McNeil said, “It’s really unfair. They’ve got entire departments, and we haven’t got Andrew Bak, Tsawwassen First Nation the capacity.”

Ernie George, Director of Tsleil-Waututh’s Treaty, Lands and Resources Department, said the funding shortfall was such that “most of the First Nations who participated (spent) tens or hundreds of thousands of dollars ‘to be consulted’.” Again, both Indigenous presenters and staff and politicians from several municipalities complained that this meant they were being forced to actually subsidize the review process.

Moving from a question of consultation to reconciliation, many presenters said they felt that Trans Mountain, the NEB and the government were all treating First Nations as an obstacle, not as a potential partner, as would be appropriate when dealing with a party who has a legal interest in the land over which you plan to build. In this context, Lee Francoeur said First Nations are looking for the same consideration that the province of British Columbia has requested in one of the five conditions that it set for its own approval: that B.C. gets some share of the benefit. So, Francoeur said, “If your product is going through our land, we should share in the benefit. If no benefit, we would just as soon

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it not get done.” Former Neskonlith Chief Arthur Manual, now speaking on behalf of the Indigenous Network on Economies and Trade, made a similar point, saying, “Billions of dollars pass through the existing pipeline, and we have no part in that.” To which Harold Aljam, Economic Development Coordinator for the Coldwater Band, added that he is not opposed to the notion of industrial development on First Nations land, “I understand we need pipelines. Do I like it? Not particularly so. But it’s a necessary evil.” But, Aljam says that if the pipeline is to be built, “I’d like to tax the crap out of it. Canada is at the table. The province is at the table. Well, they have to move over so the Shuswap can sit at that table. I don’t want Canada’s money. I want to tax our own resources.”

In a letter submitted to the panel on-line, Mike LeBourdais of the Kamloops-based Tulo Centre of Indigenous Economics expanded on that proposal, describing an Aboriginal Resource Tax that would be “a transparent, standardized and pre-specified system of charges that would be applied to the extraction, transportation or processing of resources on our respective territories.” Such an instrument would give industry certainty, whereas it now finds itself trying to negotiate a large number of one-off agreements, nation-by-nation. The acceptance of this kind of tax regime by provincial and federal jurisdictions would also “signal a real commitment to nation-to-nation relations. … It would demonstrate respect for Aboriginal title and a commitment to its implementation,” … thereby “improving all aspects of government relations and the investment climate.”

Francoeur said that in the end, reconciliation will be all about working in partnership, “Industry and First Nations must have the same vested interests in a project going through. Otherwise, there are winners and losers.” Francoeur added, (so) “Get us on board and get this project done.”

The bottom line, for many, was that narrow consultations and one-time benefit agreements cannot substitute for a serious Crown commitment to nation-to-nation negotiations and full reconciliation of Aboriginal rights and title. Many presenters mentioned the federal government’s new commitment to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and its call for “free, prior, and informed consent” on projects with impact on First Nations territory. But the responsibility to resolve these issues arises nearer to home, said Kanaka Bar Chief Patrick Michell, “The law of Canada today requires consent.”

It is important, in this discussion, to remember again that the Ministerial Panel’s mandate was not to assess a level of support or opposition to the Trans Mountain Pipeline, but rather to engage with communities and First Nations whose interests would be affected if the pipeline were to be approved. And while the panel was impressed by and grateful for the input that we received from First Nations and others, we are also conscious that our process also had gaps. There are, for example, First Nations such as the Squamish and Tsleil-Waututh, that are firmly opposed to the project and that have chosen to pursue their interests in the courts or pursue direct discussions with the Crown rather than engage at this level — as is their right. Tsleil-Waututh’s Ernie George wrote to the panel after our hearings were completed to put on record that “our community voted unanimously to reject the project.” He said the Tsleil-Waututh had “conducted our own, independent assessment of the project,

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grounded in our own laws and backed by 1,200 pages of expert scientific evidence on oil-spill risk, diluted bitumen behaviour and spill response. The assessment found that the project represents an unacceptable risk to TWN’s rights and title in Burrard Inlet.”

There also are those in the First Nations community who came before us to praise Trans Mountain and its parent company. One Edmonton presenter said that among resource companies working with First Nations, “Kinder Morgan has been better than 90 percent of them, even if it’s still nowhere near where it needs to be.” Ebringer was also among those who were more open to the prospect of the new pipeline being built. “We do need to get (Alberta’s oil) to the shoreline and if Kinder Morgan is doing it responsibly, we don’t object. We realize that we would actually die without the byproducts of natural resources. But if too much damage is done to Mother Earth, no one will survive.”

That element of concern — the inclination to tip back into stewardship mode — was ultimately dominant throughout our meetings with First Nations. In Chilliwack, for example, Seabird Band member Tyrone McNeil said, “We haven’t seen detailed design. We haven’t seen emergency response plans. We haven’t seen any analysis of the effect of a spill or a recovery strategy for salmon and sturgeon. Especially with the recognition of UNDRIP, the timelines need to slow down, if not halt and be reset, so we can build the capacity to engage with you at a level that gives us comfort.”

And Cheam Chief Ernie Crey offered a final thought on context. “I sit up nights wondering what a spill into the Coquihalla River might look like. Even a small spill into the Coquihalla would devastate salmon in the Fraser River and plunge First Nations into utter destitution. Global trade, investment, jobs: I know those are important, but consider what could be lost.”

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PUBLIC ENGAGEMENT: MEETINGS, EMAILS AND QUESTIONNAIRES

The extent of public engagement on the question of whether Trans Mountain should be permitted to 350.org — 31 emails build a second pipeline from Edmonton to Burnaby is, by some measures at least, unprecedented. SUBJECT: Reject the Kinder Morgan For example, an online questionnaire that Natural Pipeline Resources Canada designed on behalf of the The Kinder Morgan pipeline is not in Canada’s Ministerial Panel attracted 35,259 responses, national interest. the highest-ever response rate to a government of Canada questionnaire, surpassing one on Kinder Morgan will make it impossible prostitution legislation in 2014 and another on for Canada to meet its Paris climate marijuana legislation in 2016. The panel’s online commitments. If approved, it would be the portal also drew 20,154 email submissions. More emissions equivalent of adding 34 million new than half of those messages included significant cars to Canada’s roads. personalized content and 141 of the messages Building Kinder Morgan would also be an came with additional documentation — reports and egregious violation of Indigenous rights academic papers addressing different elements of and make an oil spill in the Pacific Ocean the proposed project. As to direct engagement, the almost inevitable. panel’s 44 meetings in 11 cities attracted almost 2,500 participants. Reject Kinder Morgan.

In combination, we found these efforts at engagement were extremely effective in helping us to identify outstanding issues and in forging an understanding of the elements of public support, opposition or concern about the proposed pipeline. After hearing from more than 650 speakers and reading selections from the 20,000+ emails, we are generally satisfied that we have a good sense of the breadth of issues that are most important to Canadians. (And to this end, we would like to acknowledge the staff in the Major Projects Management Office West for their help in reading and categorizing each of the emails submitted.)

We have no such confidence that the questionnaire responses, email input and public participation provided a statistically valid or reliable measure of general public support. The questionnaire and emails were both open to self-selection and to the possibility that they may have been influenced by supporters or opponents — as, indeed, they appeared to have been. The questionnaire results, which were difficult to categorize, in part because of the design of the questionnaire itself, showed that 77 percent of those who volunteered substantial reasons for their position said that they supported the project. At the same time, the emails, which definitely reflected the efforts of several well-organized campaigns, came down more than 98 percent opposed to the project. Attendance at panel meetings, and especially at public town hall sessions, was also heavily weighted to project opposition. Sven Biggs, a campaigner for the environmental organization Stand, who attended every one of the panel’s meetings in British Columbia, later wrote in the Vancouver Sun that “90 percent of speakers who took

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significant time from a work day in the middle of BC Independent Contractors – 311 emails summer to present to the panel” stood in opposition to the project. Biggs argued in this article, as SUBJECT: I support the Trans Mountain others did elsewhere, that the protests and one- Expansion Project sided crowds reflected a broad public opposition, conveying a lack of social licence for the project. Dear Ministerial Panel, However, here again the panel is aware that Stand, I strongly urge you to recommend the Trans as well as other environment groups including most Mountain Expansion Project. This project prominently the Dogwood Initiative, Leadnow and alone will help families and communities and the Sierra Club of B.C., were all extremely active in thrive. encouraging their supporters to attend and speak at panel meetings. Thus, as the analysis firm Nielsen, We need this project to move forward. It will Delany + Associates said of the questionnaire play a large role in creating jobs and wealth results: “Findings are not statistically projectable to for local families, and help build a stronger a broader population and no estimates of sampling future for B.C. The Trans Mountain Expansion error can be calculated.” As well, it was never in Project will create more than 108,000 person the panel’s mandate to measure popular support. years of employment and generate $18.5 (Presumably, if the government had wanted a billion in revenue for social services, health statistically valid public opinion poll, it would have care, education and other government commissioned one.) Rather, the panel’s role was to services. provide government with some insight as to issues That revenue could pay for 132 extra that might have been missed — and to provide firefighters or the full cost of garbage Canadians and First Nations the opportunity to raise collection in Burnaby. The total BC municipal their concerns directly. taxes paid for the extended pipeline will equal 565 senior teacher salaries every year for 20 years. Every time a tanker docks at Westbridge Marine Terminal in Burnaby, it brings $310,000 in value to the local economy.

The Trans Mountain pipeline has been operating safely for 60 years while creating many real and well-paid jobs for B.C. families. Please recommend this project for approval.

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Repeat Email Text Personalized TOTAL Content 350.org 31 31 BC Independent Contractors 311 311 Dogwood 9501 9501 Environmental Defence 2765 69 2834 Georgia Strait Alliance 218 218 Leadnow 3616 2081 5697 Living Oceans Society 49 4 53 Sierra Club BC 19 432 451 Stand 876 92 968 Wilderness Committee 90 90 TOTAL: 7667 12487 20154

However, in no way does any of the foregoing undermine the importance, quality and value of Leadnow – 5,697 emails (including public input through any of these mechanisms. The 2,081 with additional personalized content) emails were particularly rich in content and it’s worth noting, again, the high level of engagement through Subject: TMX Ministerial Panel environmental and other organizations. For example, Table 1 shows how many emails were submitted In the midst of the hottest year in recorded through each campaign and how many included history we don’t need a new pipeline that personalized content. (For the record, pro-pipeline exposes our communities to oil spills and climate disaster. comments were limited to the 311 BC Independent Contractors, 33 submissions from among the 9,501 I call on the federal government to stop this Dogwood emails and 40 from among the 5,697 dangerous and unnecessary pipeline. emails from Leadnow.)

By way of example, we have included three of the repeat emails — emails that senders picked up and submitted, which contained previously prepared copy. Below, as well, is a list of themes identified from all 20,154 submissions.

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Themes from those in opposition to the project include:

§§ The impact of the project on children and future generations; First Nations rights; climate change impacts (including GHG emissions and Paris climate commitments); the need to transition to renewable energy; the impacts of the project (including increased tanker traffic) on water, air, ecosystems, recreation and tourism, and wildlife (including fish and orca whales); the high risk and impacts of oil spills (including the properties/impacts of bitumen, Kinder Morgan’s international track record, and potential cleanup costs); the impacts on the beauty of the West Coast/tourism; the economic impacts (short-term vs. long-term economic impacts); gaps or perceived flaws in the NEB process; the lack of social licence/consent from communities; negative ethical and economic implications of foreign trade; risks from a tank farm expansion; health impacts; earthquake risks; the limited jobs from the project and the need for jobs in clean energy and other sectors; and the need to refine oil in Canada.

Themes from those in support of the project include:

§§ The need for jobs and economic growth; the need to get Canada’s resources to market; the safety of the project; the safety of pipelines compared to other modes of fossil fuel transportation; and the need to displace fossil fuels produced in other countries.

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QUESTIONS

The French anthropologist Claude Lévi-Strauss once said, “The wise man doesn’t give the right answers, he poses the right questions,” and in that spirit, we end this report with “questions,” rather than “conclusions.” This is also a direct reflection of the Ministerial Panel’s mandate, the conditions that Natural Resources Minister Jim Carr set forth in May, 2016, when he invited us to hear from the public about Trans Mountain ULC’s proposal to build a pipeline that would carry diluted bitumen from Edmonton, Alberta, to Burnaby, B.C. Minister Carr asked that we:

§§ review and consider input from the public via an online portal;

§§ meet with local stakeholder representatives in communities along the pipeline and shipping route;

§§ meet with Indigenous groups that wish to share their views with the panel, noting that the panel’s work will complement, not substitute, the Crown consultations; and,

§§ submit a report to the Minister of Natural Resources no later than November 1.

We were not asked to critique the National Energy Board’s methods or performance, but rather to identify gaps in the whole process of considering a new Trans Mountain pipeline. For that reason, we quickly came to think of ourselves as “the omissions panel” — we were searching and listening for important details that might have been overlooked. Our mandate was also clear in asking that we report our findings, rather than make recommendations. While it was an honour to engage with communities and First Nations along the proposed pipeline route and hear about the important issues they felt had been missed in the NEB process, our panel hadn’t the time, technical expertise or the resources to fill those gaps. Our role was not to propose solutions, but to identify important questions that, in the circumstances, remain unanswered.

At the detail level, the list of outstanding questions could easily overwhelm. (Given the complexity of this project, it’s no surprise that the NEB report totalled more than 500 pages.) For example, during our meetings, people raised a host of questions about the nature, content and risks of transporting and storing diluted bitumen. You could easily fill a report this size by recording the recent scientific debate about whether spilled dilbit is more likely than crude oil to break up and sink, accentuating risks to the ocean, the land and the creeks and rivers along the route of any new pipeline (or along any rail right of way). While a matter of urgent concern, issues like the dilbit threat remain beyond the purview of the panel.

Rather, we have identified six high-level questions that we heard repeatedly and that we commend to the Government of Canada for serious consideration — if not resolution — as it considers the potential future of this project. The six questions are as follows:

1. Can construction of a new Trans Mountain Pipeline be reconciled with Canada’s climate change commitments?

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2. In the absence of a comprehensive national energy strategy, how can policy-makers effectively assess projects such as the Trans Mountain Pipeline?

3. How might Cabinet square approval of the Trans Mountain Pipeline with its commitment to reconciliation with First Nations and to the UNDRIP principles of “free, prior, and informed consent?”

4. Given the changed economic and political circumstances, the perceived flaws in the NEB process, and also the criticism of the Ministerial Panel’s own review, how can Canada be confident in its assessment of the project’s economic rewards and risks?

5. If approved, what route would best serve aquifer, municipal, aquatic and marine safety?

6. How does federal policy define the terms “social licence” and “Canadian public interest” and their inter-relationships?

1. Can construction of a new Trans Mountain Pipeline be reconciled with Canada’s climate change commitments?

On a hot August evening in the Simon Fraser University’s Segal Graduate School of Business in downtown Vancouver, a capacity crowd of nearly 300 people began to grow restive in the Ministerial Panel’s public town hall. The meeting had started in what the online National Observer had described as “a jubilant mood,” with a protest on Granville Street, followed by the ceremonial delivery of a large anti-pipeline petition — a dozen symbolic (but empty) file boxes and a single USB drive bearing 140,000 names. But the jubilance had given way to impatience and a certain amount of anger as some of the speakers attacked the panel’s credibility and impartiality, and others spoke in increasingly emotional terms about the potential impact of the proposed pipeline.

Midway through the evening, a woman who self-described as an “ordinary senior citizen,” stepped up to the microphone and thanked the panel for the opportunity to be heard. She said that she and her husband had “never thought of ourselves as activists.” They were academics and business people; both have MBAs and her husband also has a science PhD. And yet, she said, she had walked into her living room a couple of years earlier to find her 20-something son “sobbing in front of the television.” He told her that he had “just watched an important politician give a speech that had actually mentioned climate change,” and he was overcome, because he thought the message so overdue. The presenter said: “In his heart, he was angry — but even more than that, he was afraid.” The incident triggered a larger family discussion, in which the woman found that her other two children — daughters — were also deeply hopeless about the future. She said: “It’s hard to hear that I will never have grandchildren.” She then went on to condemn the Trans Mountain proposal as the kind of “tipping point project” that cannot be allowed if Canadians hope to slow the advance of climate change. And the crowd cheered and applauded their support.

Earlier in the same meeting, Vancouver lawyer David Gooderham had given a detailed presentation of what he introduced as “a horrible, horrible document” — the Environment and Climate Change Canada report, The Kinder Morgan Pipeline and Canada’s Chances of Cutting Total Emissions

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by 2030. “If you haven’t seen it,” he said, “it will “All of the oil, gas and coal producers are well crush your hopes.” Gooderham described the aware that a majority of the world’s carbon report’s two contradictory messages — that reserves will have to remain sequestered Canada has promised to reduce greenhouse gas and all of these companies are competing (GHG) emissions 30 percent from 2005 levels by in a mad scramble to sell as much of their 2030, while at the same time proposing to double reserves as they can before they are told production from the oil sands, the country’s largest to stop.” point source of GHGs, by 2040. He concluded: “We’re being invited to acquiesce to a pipeline Keith Mathers, expansion that offers no chance at all” of keeping Victoria the commitments that the federal government made in the 2015 Paris climate talks. “B.C. has over 33,000 kms of energy As noted in the early chapters of this report, the pipelines that serve us well and meet issue of climate change arose in every meeting. world-class standards for safety and Pipeline proponents never hesitated to raise the reliability today. Thirty percent of the fuel issue; they asked repeatedly how they might for the vehicles, transit, and other modes of convince the doubters that increased oil sands transportation in B.C. comes from a refinery in Burnaby that depends on oil shipped in production should be part of an orderly transition by the TM pipeline... The evidence is clear: to cleaner fuels and a low-carbon economy. But we will continue to need oil and petroleum- DeRoo, Gooderham and scores of others said they based products for decades to come, even look at the Government’s own calculations and as the world transitions to less carbon-based simply don’t believe that Canada can continue to energy sources.” build fossil fuel infrastructure while meeting even its most modest emission targets. Greg D’Avignon, Business Council of British Columbia One of the most often-quoted experts on this question is Mark Carney, former Governor of the Bank of Canada and current Governor of the Bank of England. In a speech to the insurers at Lloyds of London in 2015, Carney said the world cannot safely — or profitably — continue to exploit fossil fuels. Carney said:

“Take, for example, the IPCC (Intergovernmental Panel on Climate Change) estimate of a carbon budget that would likely limit global temperature rises to 2 degrees above pre-industrial levels: That budget amounts to between 1/5th and 1/3rd of the world’s proven reserves of oil, gas and coal. If that estimate is even approximately correct it would render the vast majority of reserves ‘stranded’ — oil, gas and coal that will be literally unburnable without expensive carbon capture technology, which itself alters fossil fuel economics.”

So, we are left with the question: Can Canada demonstrate how it will meet international commitments while approving this project?

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In our North Vancouver session, we heard from “Canada needs a plan for how we’re Dr. Courtney Howard, a North Vancouverite going to reduce our GHGs in line with our currently working in Yellowknife. She pointed out international commitments under the Paris that the World Health Organization has identified agreement, and until we see how that can climate change as the number- one health threat be done, there should be no expansion of oil of our time, while the medical journal, The Lancet, sands and no more pipelines.” has called it the number-one health opportunity. Cautioning against a climate policy that is based Cheryl Kabloona, on waiting and wishful thinking, she said that, as a Chair of the Kamloops Chapter of the BC Sustainable Energy Association. frontline medical worker, “I know what its like when you lose a patient because you act too slowly.”

2. In the absence of a comprehensive national energy strategy, how can policy-makers effectively assess projects such as the Trans Mountain Pipeline?

This question is closely related to the first, but has broader and, in some regards, contradictory implications. For example, absent a transparent calculation of how a new pipeline development might fit within an orderly reduction of greenhouse gas emissions, a certain proportion of the community will stand against every pipeline proposal. There is no compelling and broadly acceptable argument that such a development would be safe and reasonable, and there is no venue in which to adjudicate which of many pipeline proposals might be the most preferable — or perhaps just the least-worst. Accordingly, as several presenters pointed out in British Columbia, you create the potential for a different kind of divide-and-conquer strategy in which development opponents attack every new proposal with equal fervor. They might oppose the Trans Mountain Pipeline based on risks to the Vancouver harbour and the Salish Sea; they oppose the Northern Gateway Pipeline proposal based on risk to the inland waterways around Kitimat, B.C.; and they oppose the Energy East Pipeline for the potential water impacts along the route. And they oppose all three based on their impact on “New projects cannot be evaluated in a First Nations’ rights and, especially, on Canada’s vacuum as was done in the National Energy greenhouse gas emissions. However, at the same Board’s Trans Mountain Expansion and in time, many of these groups then stand in opposition other project hearings.” to the Site C hydroelectric development on the Karen Whiteside, submitted online. Peace River in British Columbia.

It’s clear that the Government cannot create a national energy strategy overnight, nor can it put every project proposal on hold pending the establishment of such a strategy. Similarly, the federal–provincial agreements necessary for a national climate strategy also impose an inevitable delay. But as the Ministerial Panel heard, from project proponents and opponents alike, a broader and more transparent planning regime would offer certainty to industry and reassurance to those who are worried about the social, environmental and economic consequences of huge new resource-related developments. It leaves the difficult question of how to plan in the meantime in a way that gives these groups comfort that a broader vision is being considered.

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3. How might Cabinet square approval of the Trans Mountain Pipeline with its commitment to reconciliation with First Nations and to the UNDRIP principles of “free, prior, and informed consent?”

Earlier in this chapter, we suggested that there were many more questions to be answered at the detail level — that is certainly the case on Indigenous issues. We might ask: How do we build trust? How do we make decisions together as we travel down the long uncertain unmapped path of reconciliation? How do we change government institutions and decision-making processes in the short and long term? How do we indigenize current processes? How do we continue to make timely decisions of national importance as the reconciliation process unfolds? How do we put action behind political commitments?

Looking behind us, we have more than 60 years “… we need to focus on defining Aboriginal of apparent progress that, Indigenous presenters title rather than trying to extinguish or said, again and again, has not gone nearly as fast diminish it.” or taken us as far as we need to go. The record, as reflected in the history of the Trans Mountain Mike LeBourdais, Pipeline, is uneven, at best. A speaker at Chilliwack Chair Tulo Centre of Indigenous Economics told the Ministerial Panel that, if you want to find an Indian reserve in the B.C. Interior, you just look along the railway tracks, hydro lines and pipelines. Not only was British Columbia settled as “free land,” but between 1927 and 1951 (the year planning began on the first Trans Mountain Pipeline) Canadian law forbade an Indian band from even engaging in a land claim conversation. A lawyer could be disbarred for taking a case.

Even after the federal government lifted the ban, change came slowly, with the recognition of “existing Aboriginal rights” in the 1982 Charter of Rights and Freedoms and with transformative decisions of the Supreme Court of Canada, ranging from Calder, before the constitutional change, to Sparrow, Delgam Uukw, Haida, Williams and Tsilhqot’in Nation, in the years since.

In the first instance, these decisions set up a duty to consult, as Chief Aaron Sam of the Lower Nicola Indian Band and Cheam Chief Ernie Crey said in a letter to Prime Minister Justin Trudeau, Alberta Premier Rachel Notley and B.C. Premier Christy Clark (and later submitted to the Ministerial Panel):

“Based on Haida Nation and other related court decisions, the law in Canada is clear that prior to proof of Aboriginal rights and title, your governments have an obligation to consult with our Nations whenever you contemplate a decision that may impact our asserted Aboriginal rights and title. … the evidence is clear that TMX could have a significant adverse effect on our strong claims of Aboriginal rights and title, and therefore your governments are at a minimum required to engage our Nations in ‘deep consultation.”

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The letter goes on:

“Based on Tsilhqot’in and other related court decisions, the law in Canada is also clear that following proof of Aboriginal rights and title, in the absence of Aboriginal consent, your governments must justify any infringement of our proven interests. Where there is no Aboriginal consent, and where the infringement cannot be justified, projects that have been previously approved may be required to be cancelled.”

As we heard from Indigenous presenters all along “…the practice of negotiating financial the route, the pattern in recent years has been for compensation on a project by project basis government to devolve the obligation to consult is costly and time consuming for all parties. to others and in this case to the NEB and Trans We simply do not have the resources. Mountain, which negotiated benefit agreements Consequently, decisions about projects with several First Nations whose rights would be cannot be timely and if they are not timely, impacted by the project. However, this delegation B.C. is going to lose investments.” of responsibility for consultation was rejected in the June 2016 Federal Court decision that rejected the Mike LeBourdais, NEB approval of the Enbridge Northern Gateway Chair Tulo Centre of Indigenous Economics Pipeline on the basis that the federal government had not adequately consulted First Nations. This may be particularly the case if interim agreements or side consultations are used — or even just seen — to undermine Indigenous rights. As Chief Bryce Williams of the Tsawwassen First Nation said in an online submission to the panel: “We do not see significant value in discussing ‘mitigation’ or other initiatives to reduce the potential impact... as we are concerned that our participation in those initiatives will be used as evidence that we are active participants in the process — and de facto, that we have been ‘consulted’ or ‘accommodated’ with respect to the project.”

A briefing note prepared for the panel by the Sunchild First Nation proposes that the next stage is to build a consultation regime that is sufficiently open and trustworthy that the parties can begin to work toward true and ultimate reconciliation. As the Sunchild note states:

“Reconciliation requires sincere acts of mutual respect, tolerance, and goodwill to heal the rifts and create the foundations for a harmonious relationship. Reconciliation should help to establish a sense of self-worth and internal peace within our community. Sunchild believes that reconciliation in this context means an acknowledgement that we have more than just an ability to weigh in on how to mitigate the adverse impacts of the proposed Project on the exercise of our Aboriginal and treaty rights but rather a sincere recognition of our desire to be continuously involved in decision-making with respect to the proposed Project in relation to our treaty lands and to share in the benefits of the proposed Project in a direct and meaningful way.”

The question of resolving First Nations interests also illustrates how much support exists for this kind of economic and resource development in Indigenous communities that might otherwise be

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categorized broadly as anti-development. In an introductory letter to the briefing note quoted above, Sunchild Chief Jonathan Frencheater said:

“Sunchild is not categorically opposed to this proposed project, we simply wish to be included. We do not deny having been given the opportunity to speak to the National Energy Board, but we have not been heard. The NEB process has been unilateral; Kinder Morgan has not engaged Sunchild First Nation as a true stakeholder in this proposed Project, but as a bystander to be placated and bypassed.”

The panel heard variations of this complaint from many First Nations. For example, several First Nations on Vancouver Island, including the Scia’new, the Esquimalt and others, endorsed a proposal for a Salish Sea Environmental Foundation. Esquimalt Chief Andy Thomas wrote:

Esquimalt Nation is concerned about the long term health of the Salish Sea, not just as a result of this Project, rather as a result of the cumulative impacts of development on the Salish Sea. Recent spills, including the May 2016 diesel spill in Esquimalt Harbour and the 2015 oil spill in English Bay have demonstrated a need for further measures to better protect the health of the Salish Sea. The Foundation could serve as one tool, for example, by

§§gathering baseline data on the health of the Salish Sea,

§§better understanding the cumulative impacts of development on the Salish Sea in both Canadian and US waters, and

§§assisting in policy development.

The latter two points were also common among many First Nations. They say they want to be involved in the stewardship of their land and territory at every point, from the design of projects through the monitoring of construction to the sharing of profits — and of responsibility for oversight — ongoing. Scia’new Chief Russell Chips said: “Scia’new wants to be part of the solution and suggests that the federal government should step up and be part of the solution, too.”

A final and frequent consideration is the Government’s avowed commitment to the principles of the United Nations Declaration of the Rights of Indigenous Peoples. In another briefing note to the panel, the Union of BC Indian Chiefs states:

Canada must uphold its commitment to fully implement the UNDRIP in considering approval of the TMX project: This includes UNDRIP’s direction that States shall “consult and cooperate in good faith with the Indigenous Peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

In conclusion, the positions that First Nations have taken toward the proposed pipeline vary considerably. But there appears to be a broad appetite for engagement and, among many First

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Nations, an open door for any government that is prepared to consult and work toward reconciliation in good faith.

While it was never the Ministerial Panel’s role to assess the National Energy Board’s performance, “The NEB appears to unquestioningly accept the panel heard from many dozens of presenters what Trans Mountain says. The intervenors, who complained that the NEB process had due to the manner in which the hearings alienated would-be participants or overwhelmed were set up, had no opportunity to cross- their ability to participate. Municipalities and examine evidence by Trans Mountain.” First Nations said they were presented with huge Suzanne Hale, amounts of information, impossibly short deadlines co-founder of the Yarrow Eco-Village in which to respond and inadequate resources with which to analyse or understand the challenges before them. They were denied an opportunity to cross-examine Trans Mountain or its experts orally, and when they submitted questions in writing, they were often ignored or dismissed with references back to Trans Mountain’s original 15,000-page proposal. More than 400 individuals or organizations were denied standing — as intervenors or commentators — and among those who gained standing, many said they abandoned their participation because they were overwhelmed by the flow of material or they simply lost faith in the goodwill of the NEB.

Accordingly, as the Ministerial Panel began its work, it was greeted with a significant amount of “… (Prime Minister Justin) Trudeau stated anger and suspicion. Supporters who had spent that the gutting of environmental legislation a huge amount of time and effort in the NEB’s and the politicization of the NEB by the complex — and they said thorough — process were Harper Government undermined the Board’s legitimacy. He said the NEB had unhappy that the Government had set aside the ‘torqued’ project reviews to make it easier to NEB’s positive recommendation in favour of another recommend approval ... the Prime Minister of series of reviews and consultations. And those Canada has broken his very specific promise who were opposed to the project, many of whom that the Trans Mountain Expansion Project had sought and expected a complete dismissal of would not proceed but would have to be the NEB finding and a new review that would start ‘redone.’” from scratch, complained that the panel process looked like what one presenter called “a band-aid Marc Eliesen, for a botched NEB process.” People complained former President and CEO of BC Hydro, Chair of Manitoba Hydro, Chair and CEO of Ontario Hydro, about our timetable, condemning the summertime and Deputy Minister of Energy in the meeting schedule that was necessary for us to meet Provinces of Ontario and Manitoba our deadline, but inconvenient for those in vacation mode. They complained that our process was not formal enough — that there were not transcripts

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or video recordings. They attacked the credibility “The flaws in the NEB process are well of individual panelists, saying, for example, that documented. In short, Kinder Morgan’s because Chair Kim Baird had once participated in evidence was not adequately tested and the a leadership exchange with Trans Mountain ULC findings in the final report rejected all Tsleil- President Ian Anderson that her impartiality was Waututh scientific evidence .... TWN did not in question. Presenters called the panel “a sham,” attend ministerial panel meetings because of “a politically motivated and corrupt process,” and our longstanding call for a jointly developed “Jim Carr’s punching bag.” Panel members were consultation process between First Nations accused, individually and severally, of being “just and the federal government that recognizes Trudeau’s messenger” and of having “less credibility and respects nation-to-nation relationships than Donald Trump.” and governance rights.’”

We attribute much of this response to a mix of Tsleil-Waututh Chief Ernie George frustration and, perhaps, to confusion about the panel’s mandate, which was understandable. For example, when First Nations received invitations to participate in a panel roundtable, but had not yet been contacted to re-engage in formal consultation with the Government of Canada, some mistook the nature of our request. At one point, Cheam Chief Ernie Crey called in “a drive-by consultation.” We hope that the formal Crown consultations underway will resolve that confusion.

But there remains a question about how government can satisfy itself as to the accuracy “The Union of BC Indian Chiefs is concerned of its inputs and how it can build confidence in that the Ministerial Panel is designed to the public that it is making decisions based on try and buy political cover for the Liberals to approve the TMX project. The Liberals reliable processes. And this is complicated, again, are currently working to ‘restore trust in by the variety and complexity of the issues. On the regulatory system’ but given that the job creation alone, there are a host of alternative actual NEB process left out the voices of analyses. For example, in its original application, many people impacted and ignored climate Trans Mountain said it would create 36,000 person- change, the Ministerial Panel is not restoring years of employment. But the Goodman Group, in trust.” collaboration with SFU’s Centre for Public Policy Research, produced a report in 2014 which said Union of BC Indian Chiefs that Trans Mountain had overstated its job-creation potential by a factor of three.

The Goodman Group estimated 12,000 jobs or less. Then, in response to this discussion, Trans Mountain pointed the panel to a December 2015 Conference Board of Canada report suggesting that the real number was 678,000 person-years of employment (over the first 20 years of pipeline operations) based on jobs that might be created as oil companies re-invest profits (because they are expecting to receive a higher price for their crude oil exports).

The Conference Board went on to say: “… additional investment in the oil and gas sector would be expected to lift production beyond what it would otherwise be. This would lead to significant

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operational and fiscal impacts associated with incremental production that are not measured in this briefing. As such, the estimates provided here can be considered conservative.”

So, the Conference Board projects that we can look forward to increased economic activity — and says that we can attribute that activity directly to the pipeline construction, on the basis that the oil sands cannot expand if there is not also an expansion in the distribution infrastructure. Yet, at the same time, Environment and Climate Change Canada maintains in its report on upstream emissions, that no additional GHG emissions can be attributed to the Trans Mountain project because oil sands expansion can be expected to occur anyway, with the distribution load spread, say, to rail. These contradictions are difficult to resolve within the current policy and planning regime.

There also are other points on which presenters to the Ministerial Panel asked for further consideration. For example, presenters pointed out that the NEB report states that: “… the Board found project-related marine shipping to have significant effects on the southern resident killer whale, and on Aboriginal cultural and spiritual use of the southern resident killer whale.” Given that this endangered population is protected under the federal Species at Risk Act, several presenters suggested that this finding alone should have been sufficient for the NEB to reject the project.

It is not within the Ministerial Panel’s brief to indicate that any of these positions is more credible than any other. The challenge falls to the federal Cabinet to decide how, or if, it can make these findings on the strength of information already in hand, or whether further information or processes will be necessary — particularly in the context of the changing economic circumstances and the Government’s own shifting political positions on climate change.

5. If approved, what route would best serve aquifer, municipal, aquatic and marine safety?

From the opening day of the Ministerial Panel’s meetings and deliberations, reports of recent and current oil spills were a constant topic of conversation. The bunker fuel spill in English Bay in April 2015 from the grain ship Marathassa shocked and angered residents and municipal officials alike. Here was a brand-new vessel, a Japanese-built freighter with all the most up-to-date safety equipment, spilling bunker fuel into the water and onto the shores of Vancouver’s beaches and parks. And while the Western Canada Marine Response Corporation (WCMRC) told the panel that its response in this instance demonstrated its capacity to manage a West Coast oil spill, others pointed out that even here, right in Vancouver harbour — and in very favourable weather conditions — WCMRC had managed to recover less than half of the original spilled fuel.

In July, just as we had moved the panel’s public meetings from Alberta to B.C., the Husky Oil pipeline burst in Saskatchewan, leaking almost 1,600 barrels of diluted bitumen into the North Saskatchewan River, forcing the communities of North Battleford, Prince Albert and Melfort to shut down their drinking water intakes and make emergency plans to attain water from other sources. And then in October, a tugboat pushing an empty fuel barge ran aground on the B.C. north coast near Bella Bella, the tug sinking and leaking diesel into the choppy seas and onto the shellfish beds that the Heiltsuk

55 MINISTERIAL PANEL FOR THE TRANS MOUNTAIN PIPELINE EXPANSION PROJECT

people depend upon food. Early recovery operations in the Bella Bella spill went badly, with the oil booms breaking up in bad weather. On October 27, a Vancouver Sun editorial said:

“This Bella Bella accident points primarily to the abject failure of government and regulatory authorities to address what environmental critics, First Nations and the public have been arguing for years — that we are neither adequately resourced, equipped, trained nor prepared to deal with an oil spill of any significance on B.C.’s convoluted, craggy and complicated coast.”

It is in this context that the Government must decide whether the Trans Mountain Pipeline is a worthwhile risk — and whether its current route is the right one. The route question came up again and again during panel meetings. Presenters along the proposed route complained about the risk to treasured places such as Jasper National Park or Surrey Bend Regional Park. They worried about a leak into the drinking water aquifers in the Fraser Valley. Residents of Burnaby complained about the prospect of Trans Mountain tripling the capacity of its tank farm at the foot of Burnaby Mountain and filling those tanks with a highly volatile substance — diluted bitumen — an explosion from which could strand more than 35,000 people. The students, staff and faculty of Simon Fraser University and the residents of the adjacent community, UniverCity, currently have no other way off the mountain in the event of a fire at the tank farm, which sits at the intersection of the only roads up or down the mountain. Presenters also questioned the positioning of an expanded oil export terminal in the least-accessible portion of the busiest port in Canada. They expressed their concern about the route through the Salish Sea and the inevitable impacts on marine mammals and other sea life — even if there was never an accident.

Further to the discussion in a previous section about the current absence of a national energy strategy, more than one presenter suggested to the panel that the Trans Mountain route, as proposed, is an historical accident, not a first choice. They said they doubted that anyone, designing an optimal route today, would choose to thread the pipeline through some of the most densely populated parts of British Columbia and into the busiest waters.

In a response to this discussion, Trans Mountain later pointed out that in its original submission to the NEB, it had raised the prospect of an alternative pipeline route ending by the coal terminals on Roberts Bank, but had dismissed this option on the bases of greater costs and environmental impact in that location. The company did not address another suggestion, that the pipeline be diverted into the United States at Sumas, following an existing Trans Mountain line to the Cherry Point export terminal in Washington State. As with the oft-requested considerations that any new pipeline be reserved for upgraded crude oil and that the mass transportation and export of diluted bitumen be limited or prohibited, these remain questions for government and industry. But in Burnaby, especially, officials from SFU suggested that the tank farm expansion should only be considered with the provision of an alternative public access to — and egress from — the mountaintop.

56 MINISTERIAL PANEL FOR THE TRANS MOUNTAIN PIPELINE EXPANSION PROJECT

6. How does federal policy define the terms “social licence” and “Canadian public interest” and their inter-relationships?

“While governments grant permits for resource development, only communities can grant permission.” This line, enshrined in the 2015 Liberal election platform, appears to have set an expectation among many people in communities and First Nations along the proposed Trans Mountain Pipeline route that they have what amounts to a veto — that the Government will respect a community’s decision to withhold permission. As reported earlier in this document, we heard from many presenters who said, flatly, that on the basis of community support, the pipeline has no social licence. A quote from the MP for Burnaby–North Seymour, Terry Beech, was one of the clearest on this topic. He said, “After speaking with tens of thousands of individuals ... I can tell you with confidence that the people of Burnaby–North Seymour on balance stand opposed to this project, and that the community does not currently grant permission for this project to proceed.”

As we on the panel were reviewing the material that we had gathered, in meetings and from online and other sources, however, we found a different interpretation of “social licence.” In response to a question in the House of Commons, Natural Resources Minister Jim Carr said, “‘Social licence’ is about ensuring public confidence in the decision-making for major resource projects.” And his department followed up with a further clarification, saying that the Government is “striving to act in the best interest of Canadians” as it tries to restore public trust in federal regulators. The department stated: “The goal is to provide regulatory certainty not only to project proponents, so they know the basis on which decisions will be made, but also to the public, so they know that the environment will be protected and that economic growth will be based on proper oversight, protections and safeguards.”

However, social licence is ultimately defined — “The Kinder Morgan expansion would be and ultimately, the various “publics” along the a disaster for coastal British Columbia. route will play a central role in that process — the There is no social licence, no anticipated Government will also be challenged to reconcile benefit, and a very high level of risk to our the degree of licence with a finding on the national endangered Orca population, as well as to public interest, another term that, so far, remains our economy and health.” only loosely defined in this context. Gillian Darling Kovanic, In our meetings, the National Energy Board’s Bowen Island conception of the public interest was often rejected — or deemed unsatisfactory. The NEB uses the following as a definition for public interest:

“The public interest is inclusive of all Canadians and refers to a balance of economic, environmental and social interests that change as society’s values and preferences evolve over time. As a regulator, the Board must estimate the overall public good a project may create and its potential negative aspects, weigh its various impacts, and make a decision.” NEB Reasons for Decision, Emera Brunswick Pipeline Company Ltd., GH-1-2006.

57 MINISTERIAL PANEL FOR THE TRANS MOUNTAIN PIPELINE EXPANSION PROJECT

Specific as this seems, the NEB offered no “It is folly to think this jury-rigged addition evidence in its report on the Trans Mountain to a completely one-sided NEB process will proposal as to what specific elements of the Trans somehow achieve social licence in BC for the Mountain proposal fulfilled the public interest. Kinder Morgan expansion. It’s difficult to see Acknowledging its responsibility to weigh benefits this as anything other than a cynical public against negative impacts, it stated: “The Board relations ploy, particularly when we see the recognizes that there are burdens associated with swift reaction to conflict-of-interest involving this Project that cannot be completely mitigated the Energy East review. I urge the government and that these residual burdens rest primarily to acknowledge the inadequacy of this panel, within the local and regional communities. This and undertake the full, fair and transparent includes Aboriginal communities.” The NEB further review process that was promised in the last stated that while the benefits were “national election. “ or regional in scope,” the burdens “would be Michael Brockington, shouldered by local and regional communities.” submitted online This was the complaint most often put to the panel, that the communities that carry the most risk will not enjoy the benefits, many of which flow instead to an infrastructure company that is not even based in Canada.

The challenge for a federal administration is to assess whether the disadvantages to one “The definition of public interest cannot region of the country are adequately balanced include local communities bearing the by advantages in another region. Perhaps not burden of the unnecessary risks and costs of surprisingly, the panel heard frequently in Alberta the project.” that the project is in the public interest and is Langley Township Solicitor Maegen Giltrow urgently needed for economic development, while in B.C., it was more likely to hear that the risks outweighed the rewards. The answers to the questions this generates are unlikely to garner easy agreement. It will be for the federal government to interpret whether there is a national public interest and whether it has the capacity to imply or engender a more broadly based social licence, even in instances when local communities stand firmly in opposition.

The issues raised by the Trans Mountain Pipeline proposal are among the most controversial in the country, perhaps in the world, today: the rights of Indigenous peoples, the future of fossil fuel development in the face of climate change, and the health of a marine environment already burdened by a century of cumulative effects. There are matters of public safety and environmental sustainability, overlaid against economic need in a province where a once-strong resource sector is currently under severe strain. We, as the Ministerial Panel, hope that we have done well by the many thousands of people who provided input in this process — in helping to craft a set of questions that may bring clarity in the decisions to come.

58 THIS IS EXHIBIT "l.O'' Referred to in the Affidavit of Michael Davies

Sworn before me this 26th day of October A.D. 2017

I IN AND FOR BRITISH COLUMBIA

SHANNON DAVIDSON Barrister & Solicitor Osler, Hoskin & Harcourt LLP Suite 1700, Guinness Tower 1055 West Hasting Street Vancouver,Bc V6E2E9 Telephone : 604.692.27 54 ARCHIVED — Canada Gazette – NATIONAL ENERGY BOARD Page 1 of 24

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NATIONAL ENERGY BOARD

NATIONAL ENERGY BOARD ACT

To Trans Mountain Pipeline ULC for the Trans Mountain Expansion Project: (i) Order — Certificate of Public Convenience and Necessity OC-001-064; (ii) Amending Order in Council AO-002-OC-49; and (iii) Amending Order in Council AO-003-OC-2

P.C. 2016-1069 November 29, 2016

Whereas, on December 16, 2013, Trans Mountain Pipeline ULC (“Trans Mountain”) applied to the National Energy Board (“the 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 (“the 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 (“the 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, by Order in Council P.C. 2016-435 of June 3, 2016, the Governor in Council, pursuant to subsection 54 (3) of the National Energy Board Act, extended the time limit referred to in that subsection by four months to allow for additional Crown consultation with potentially affected Aboriginal groups, public engagement, and an assessment of the upstream greenhouse gas emissions associated with the Project;

Whereas the Governor in Council, having considered Aboriginal concerns and interests identified in the Joint Federal/Provincial Consultation and Accommodation Report for the Trans Mountain Expansion Project dated November 21, 2016, is satisfied that the consultation process undertaken is consistent with the honour of the Crown and that the concerns and interests have been appropriately accommodated;

Whereas the Governor in Council accepts 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 Candian Environmental Assessment Act, 2012;

Whereas the Governor in Council, having considered the estimated upstream greenhouse gas emissions associated with the Project and identified in Environment Canada’s report entitled Trans Mountain Pipeline ULC — Trans Mountain Expansion Project: Review of Related Upstream Greenhouse Gas Emissions Estimates, and the Government of Alberta’s Climate Leadership Plan commitment to cap oil sands emissions at

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100 megatonnes of carbon dioxide equivalent per year, is satisfied that the Project is consistent with Canada’s commitments in relation to the Paris Agreement on Climate Change;

Whereas the Governor in Council has considered the Ministerial Panel’s report on the Project entitled Report from the Ministerial Panel for the Trans Mountain Expansion Project, dated November 1, 2016;

And whereas the Governor in Council considers that the Project would increase access to markets for Canadian oil and support environmentally sustainable resource development;

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

(a) pursuant to subsection 31(1) of the Canadian Environmental Assessment Act, 2012, decides that, taking into account the terms and conditions referred to in paragraph (b), the Trans Mountain Expansion Project is not likely to cause significant adverse environmental effects, and directs the National Energy Board to issue a decision statement concerning that Project; (b) pursuant to subsection 54(1) of the National Energy Board Act, directs the National Energy Board to issue Certificate of Public Convenience and Necessity OC-64 to Trans Mountain Pipeline ULC, in respect of the proposed construction and operation of the Trans Mountain Expansion Project, subject to the terms and conditions set out in Appendix 3 of the National Energy Board Report of May 19, 2016 entitled Trans Mountain Expansion Project OH-001-2014; and (c) pursuant to subsection 21(2) of the National Energy Board Act, approves the issuance by the National Energy Board to Trans Mountain Pipeline ULC of Amending Order AO-002-OC-49 and Amending Order AO-003-OC-2, substantially in the annexed form.

EXPLANATORY NOTE

(This note is not part of the Order.)

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 kilometre (km) Trans Mountain Pipeline system between Edmonton, Alberta (AB), 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).

On May 19, 2016, following its hearing and review of the Project, the Board issued its Report and recommendations to the Government of Canada. It recommended that the Project would be in the public interest and that the Governor in Council issue the Certificate for the construction and operation of the Project, subject to 157 terms and conditions that the Board considers necessary or desirable to ensure the safe construction and operation of the pipeline, mitigate environmental impacts and address potential impacts on Indigenous rights and interests identified during its review of the Project.

The Board is also seeking approval to issue two amending orders in council pursuant to subsection 21(2) of the NEB Act, including

1. Amending Order AO-002-OC-49 for the removal from Certificate OC-49 (transfer from Line 1 and put into service on Line 2). This is a 150 km nominal pipe size (NPS) 36 inch pipeline segment from Hinton to Hargreaves; 2. Amending Order AO-003-OC-2 for

• Authorization to decommission

• one existing tank at the Edmonton Terminal West Tank Area; • one existing tank at the Burnaby Terminal

• Authorization to reactivate

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• 150 km NPS 24 pipeline segment from Hinton to Hargreaves; • 43 km NPS 24 pipeline segment from Darfield to Black Pines; and • Niton Pump Station

• Removal from Certificate OC-2 (transfer from Line 1 and put into service on Line 2):

• 43 km NPS 30 pipeline segment from Darfield to Black Pines

Background

Trans Mountain submitted its application to the NEB for a certificate for the Project on December 16, 2013. The purpose of the Project is to increase capacity of the pipeline system from 300 000 bbl/d to 890 000 bbl/d, by twinning the existing Trans Mountain pipeline that currently transports oil from Edmonton to Burnaby.

The pipeline would follow an existing right-of-way for 89 per cent of its 1 147 km length. The Project would also expand the WMT by adding two berths to allow the terminal to increase, from five to 34, the number of tankers it receives per month. This would increase Project-related tanker traffic through the Burrard Inlet by up to 13.4 per cent and in the Juan de Fuca Strait by 6.6 per cent over current levels.

For the purposes of the Canadian Environmental Assessment Act, 2012 (CEAA, 2012), the construction and operation of a new pipeline with a length of 40 km or more are designated activities linked to the Board, as prescribed under item 46 of the Schedule to the Regulations Designating Physical Activities (SOR/2012-147). The Project is therefore a “designated project” in relation to which the Board must conduct an environmental assessment (EA) in accordance with the requirements of the CEAA, 2012. The NEB must ensure that Canadians have the opportunity to participate in the EA, and issue an EA report, which is, in this instance, included in the NEB recommendation report.

On January 27, 2016, the Government of Canada introduced an interim strategy for decision making on major projects undergoing review. Under the interim approach, five principles were used to guide the Government’s decisions on energy projects: (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. For the Trans Mountain Expansion Project, the principles were implemented in measures such as

• Undertaking deeper consultations with Indigenous peoples and providing funding to support participation in these consultations; • Assessing the upstream greenhouse gas (GHG) emissions associated with this Project and making this information public; and • Appointing a panel to engage communities, including Indigenous communities potentially affected by the Project, to seek their views and report back to the Minister of Natural Resources.

To support these commitments, the Governor in Council extended, by Order in Council P.C. 2016-435 dated June 3, 2016, the regulatory time limit for a decision on the Project by four months. As a result, the Governor in Council has until December 19, 2016 (instead of August 19, 2016) to make a decision. This additional time provided for deeper Crown consultation with Indigenous groups and engagement with the public in addition to assessing the GHG emissions associated with the Project. Budget 2016 increased participant funding to Indigenous groups from $700,000 to $2.2 million.

National Energy Board review process

Board consultation process

In April 2014, the NEB 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 people, landowners, individuals and non-government organizations.

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In July 2013, the Board announced it would make $1.5 million available to eligible intervenors to participate in the hearing. However, the funding envelope was subsequently increased to a total of $3,085,370 allocated to 72 intervenors.

The Board relied on its Enhanced Indigenous Engagement initiative to ensure potentially impacted Indigenous groups have the opportunity to be heard. Through this initiative, 73 Indigenous groups (see footnote 1) participated as intervenors into the hearing process, and 35 groups and individuals provided oral traditional evidence to the Board at sessions held in Edmonton, AB, in September 2014, Chilliwack, B.C., in October 2014, Kamloops and Victoria, B.C., in November 2014, and Calgary, AB, in January 2015.

Issues raised during NEB hearings

Commercial parties

The Project has strong support from 13 shippers (including Canadian Oil Sands, Cenovus, Devon, Husky Oil, Imperial Oil, Statoil, Suncor, Tesoro and Total) with firm commitments of approximately 112 300 m³/d (707 500 bbl/d) in long-term contracts of 15 or 20 years. The Canadian Association of Petroleum Producers, a major industry association, and the Explorers and Producers Association of Canada also support the Project. Both the Edmonton Chamber of Commerce and the British Columbia Chamber of Commerce said that the crude oil transmission infrastructure is used at full capacity and additional capacity is critically needed.

Individuals and non-government organizations

Of the approximately 400 intervenors and 1 250 commenters in the hearing process, many were individuals and non-government organizations who expressed strong opposition to the Project, citing the risk of a spill, downstream and upstream climate change impact and environmental effects. Some participants questioned the need for the Project, and submitted that investing in renewable energy would be a preferable option for Canada.

Indigenous groups

Seventy-three 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 NEB. A total of 35 Indigenous groups and individuals provided oral traditional evidence to the Board during the hearing.

Indigenous groups’ overarching issues identified relate to the potential significant adverse impacts the Project could have on their asserted or established Aboriginal and treaty rights. These consist of the rights to hunt, to trap, to fish, to harvest, and to carry out traditional activities, including cultural and spiritual activities. In addition to these overarching concerns related to their asserted and established Aboriginal rights and title, other key Indigenous concerns pertain to the Project’s potential effects on

• cultural heritage resources; • community health; • cumulative effects of development; and • employment.

Indigenous groups also raised concerns about the potential adverse effects of the Project on the environment, which relates to fish and fish habitat, wildlife, vegetation, soils, water quality and quantity, and traditional land and marine resource use. With respect to impacts on traditional land and marine resource uses, practices and activities, some groups fear it could negatively impact their ability to continue their ancestral and traditional way of living through hunting, fishing, trapping and gathering of plants for subsistence or medicinal purposes. Many Indigenous groups expressed concerns over the Project’s potential impacts related to spills and other health- related issues, including stress and reduced prenatal health and youth development.

In addition, several Indigenous groups are concerned by the cumulative impacts associated with accelerated resource development on their traditional lands. They noted that as industrial and commercial development unfolds at an accelerated pace through highways, roads, farming and resource development in general, their ability to exercise their Aboriginal and treaty rights could also be diminishing.

Regarding employment, many Indigenous groups expressed an interest in employment and procurement opportunities as well as assistance with training to provide required skills. Some groups would like to participate in monitoring activities, and requested that community members or Elders be present during construction and involved in reclamation work to ensure mitigation measures are completed.

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Government interventions

Environment and Climate Change Canada (ECCC)

ECCC participated in the NEB review process as an intervenor and filed written evidence to inform the Board’s decision on various subject matters, including species at risk, migratory birds, wetlands, air quality, environmental emergencies, disposal at sea, meteorology and climate change. As one of the federal departments responsible for the implementation and management of the Species at Risk Act (SARA), i.e. those extirpated, endangered or threatened species that are listed on Schedule 1 of the SARA, ECCC advised the NEB on the Project’s potential adverse impacts on 70 species at risk and their critical habitat likely to be found along the Project route, including the southern mountain woodland caribou and grizzly bear. (see footnote 2)

Department of Fisheries and Oceans (DFO)

DFO was an Intervenor and Federal Authority in the EA for the Project, providing technical expertise and information related to marine fish and fish habitat, and marine mammals (including marine species at risk) to the NEB.

The evidence before the Board suggests that Burrard Inlet, the area where the expansion of the WMT would occur, is a productive marine environment, supporting a diverse assemblage of algae, invertebrates (more than 100 species), and marine fish (more than 75 species), including three SARA-listed marine fish species of special concern: Bluntnose sixgill shark, Green sturgeon, and Yelloweye rockfish (inside waters population).

Trans Mountain and DFO agree that Burrard Inlet has been cumulatively impacted by industrial and urban development, as it used to be historically one of Canada’s most productive marine fish habitats. For the construction and operation of the marine terminal, DFO is of the opinion that with the implementation of appropriate mitigation measures, effects on marine mammals and fisheries are unlikely. Should the Project proceed to the regulatory phase, DFO will require additional detailed information to support its review under the Fisheries Act. Condition 109 requires Trans Mountain to provide a copy of the Fisheries Act authorization for the marine terminal prior to commencing operations. DFO also recommended that Trans Mountain develop a follow- up monitoring program to assess the effectiveness and adequacy of its mitigating measures for the marine terminal.

Participants in the NEB hearing also noted that the Southern resident killer whale is listed as endangered under the SARA. The NEB found that the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale, an endangered species under the SARA, and on Indigenous cultural uses of the Southern resident killer whale. The NEB report recommended the Government take actions to reduce the potential effects of vessels on this species.

Health Canada (HC)

HC participated in the NEB review of the Project as a Commenter and submitted a Letter of Comment providing expert views on various subject matters, including air quality, drinking and recreational water quality, noise, contamination of country foods, and human health.

HC indicated that, overall, there is a low likelihood for acute and chronic health effects due to Project-related air emissions and that potential effects on drinking and recreational water during normal operation would be low. However, HC subjects such a conclusion to the effective implementation of spill control measures to limit the dispersion of crude oil into drinking water sources and recreational waters.

HC is of the view that there would be few Project-related effects due to contamination of country foods consumed by Indigenous residents, urban dwellers and area users in the vicinity of the Burnaby Terminal and the WMT during normal operations of these facilities. Impacts associated with major crude oil spills in terms of contamination of, access to, and availability of terrestrial and marine country foods for Indigenous communities could be high; however, the Board found the risk of such a spill occurring was low. In addition, the Board noted that air emissions monitoring would serve as a valuable tool in verifying and validating the results of any air dispersion modelling and imposed six conditions on Trans Mountain to address concerns raised by several participants, including HC. (see footnote 3)

Other participating federal departments and organizations

Other federal departments and organizations that participated included Transport Canada (TC), Natural Resources Canada (NRCan), Indigenous and Northern Affairs, Parks Canada Agency, and Port Metro Vancouver.

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NEB assessment and conclusions

Socio-economic impacts

In assessing the socio-economic impacts of the Project, the Board considered (1) market access for Canadian oil; (2) job creation through construction and operation of the pipeline; (3) ability for local and Indigenous individuals, communities and business to develop; (4) direct economic benefits stemming from spending on pipeline materials and income revenues; and (5) tax revenues received by municipal, provincial and federal governments.

The Board found that increasing pipeline capacity to improve access to Pacific Basin markets would significantly benefit the Canadian economy, and that the economic benefits of the Project could be regionally and nationally distributed. The Board was satisfied that the 13 shippers’ firm and long-term (15 to 20 years) contracts provide a clear demonstration of the strong business support for the Project.

Trans Mountain estimated that the Project would inject $6.8 billion in capital expenditures into the Canadian economy and could provide total producer benefits of $73.5 billion due to improved market access, and that federal and provincial benefits from direct operations of the pipeline could be $23.7 billion, excluding benefits stemming from activities such as extraction, domestic processing, and exports to foreign markets.

The proponent further estimated that the Project would generate direct and indirect employment in Canada. The construction of the pipeline could generate 400 to 600 workers per spread during the construction phase. New tanks and WMT construction is expected to add between 150 and 465 workers. Trans Mountain estimated that the Project operations over the first 20 years could create 440 jobs per year, of which 313 would be in British Columbia. Indigenous groups are expected to take advantage of mutual benefit agreements signed with the Project proponent, along with provisions for Indigenous employment, training and procurement opportunities. Furthermore, it is also expected to bring modest benefits to local communities along the pipeline and contribute to improving local emergency response capacity, improving community parks and infrastructure, and developing environmental stewardship programs.

Environmental impacts

The Board assessed the environmental impacts of the Project under both the NEB Act and CEAA, 2012. The EA under 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 CEAA, 2012 that are likely to be affected by the Project; and (iii) the factors that must be taken into account in conducting an EA 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 the SARA, atmospheric and acoustic environment, heritage resources, traditional land and resource use, navigation and navigation safety. Even though Project-related marine shipping activities are not part of the Project, and are not regulated by the NEB, the Board considered the potential effects of increased marine shipping activities as part of its overall public interest determination under the NEB Act. However, the Board did not consider potential effects associated with other operation activities occurring upstream and downstream of the Project, including oil sands development and operations.

The Board finds that with the implementation of Trans Mountain’s proposed environmental protection procedures and mitigation measures, and the Board’s recommended conditions, pursuant to its authority under the CEAA, 2012, the Project is not likely to cause significant adverse environmental effects. However, under the NEB Act, the Board is of the view that the operation of Project-related marine vessels would contribute to the total cumulative effects on the Southern resident killer whales, and would further impede the recovery of the Southern resident killer whale population, an endangered species that lives in the Salish Sea. As a result, the operation of Project-related marine vessels would likely result in significant adverse effects to the Southern resident killer whale, and on Aboriginal cultural uses associated with these marine mammals.

The Board noted that marine shipping is beyond its regulatory authority and it does not have the ability to impose specific mitigation conditions to address environmental effects of Project-related marine shipping, including those to mitigate effects on the Southern resident killer whale. As a result, the Board encouraged other regulatory authorities, such as TC and DFO, to explore initiatives that would aim to reduce the potential effects of marine vessels on marine mammals. In addition, Trans Mountain committed to a series of actions supporting the recovery of the Southern resident killer whale. For example, as part of its Marine Mammal Protection Program, Trans Mountain has committed to supporting the objectives and recovery measures identified in the Action Plan for the species.

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In addition to Trans Mountain’s proposed mitigating 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); freshwater 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 (9); woodland caribou (4); grizzly bear (2); other species at risk (3); parks and protected areas (8); marine sediments and water quality (1); marine fish and fish habitat (2); marine mammals (1); accidents and malfunctions (2).

The proposed Project would cross each of the Wells Gray and Groundhog subpopulations and the Mount Robson local population of southern mountain caribou. 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 the 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 that would describe the type of habitat characterized by biophysical attributes of critical habitat, as defined in the Southern Mountain Caribou Recovery Strategy.

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 threatened grizzly bear population unit. Nevertheless, the Board accepts Trans Mountain’s intent to route the pipeline adjacent to existing disturbance for most of the pipeline corridor length in the North Cascades Grizzly Bear Population Unit. As a result, 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. Condition # 56 requires Trans Mountain to file Grizzly Bear Mitigation Plans for each vulnerable grizzly bear population unit/grizzly bear management area. As part of these plans, Trans Mountain would be required to monitor the effectiveness of mitigation measures, apply corrective measures as needed, and report on monitoring results in post-construction monitoring reports.

The Board assessed the direct GHG emissions from the Project and its related marine vessel traffic. It concluded that the direct GHG emissions from the Project construction, without any additional Board imposed mitigation conditions, would have been substantial — over 1 million tonnes of carbon dioxide (CO2) equivalent. To help mitigate this impact, the Board included a condition requiring Trans Mountain to develop an offset plan for the Project’s entire direct construction-related GHG emissions determined post-construction. Annual project emissions are estimated to be 407 000 tonnes of CO2 equivalent per year.

Although emissions from Project-related marine vessels would be a small percentage relative to Canadian GHG emissions, given that there are no regulatory reporting thresholds or specific requirements for marine GHG emissions in Canada, the Board found that GHG emissions from Project-related marine vessels would likely be significant. While the NEB does not regulate marine shipping, the NEB imposed conditions to mitigate the impacts related to these findings.

Impacts on Indigenous groups

Both social and environmental issues raised by Indigenous groups were considered and addressed through the NEB review process. The 157 conditions recommended by the NEB will require Trans Mountain to implement all commitments it made through the review process, and further implement mitigation measures for impacts that might otherwise occur to people and the environment, including in relation to air quality and greenhouse gases; water quality; soil, vegetation and wetlands; wildlife and wildlife habitat; fish and fish habitat; and marine mammals. Several of the conditions specifically address Aboriginal interests, such as requiring the proponent to continue reporting on the availability and findings of traditional use studies, hiring of Aboriginal monitors during construction, and ongoing filing of Aboriginal engagement reports. There are also specific conditions tied to concerns by the Coldwater Indian Band and Stó:lō Collective.

With respect to rights associated with subsection 35(1) of the Constitution Act, 1982, the Board concluded that, having considered all the evidence submitted in this proceeding, the consultation undertaken with Aboriginal groups, the impacts on Aboriginal interests, the proposed mitigation measures, including conditions, to minimize adverse impacts on Aboriginal interests, and Board imposed requirements for ongoing consultation, it was satisfied that the Board’s recommendation and decisions with respect to the Project are consistent with subsection 35(1) of the Constitution Act, 1982.

Impacts on landowners

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More than 89 percent of the pipeline route for the Project parallels existing disturbances, including the right-of- way for Trans Mountain’s existing pipeline. The new pipeline will parallel the existing Trans Mountain pipeline for 73 percent of its total length, and other existing disturbances for 16 percent. The Project will cross provincial Crown lands (25.71 percent), private lands (73.5 percent), and Indigenous lands (0.8 percent).

The Collaborative Group of Landowners Affected by Pipelines and Metro Vancouver expressed concerns with the methodology Trans Mountain used for establishing market value for the purpose of determining the value of land rights acquired for the Project. In response to these concerns, Trans Mountain said that, based on research undertaken by accredited appraisers, B.C. Assessment valuations had been used as a basis for residential properties but values included an uplift to address any undervaluation that existed.

The NEB approved the Project routing, as it found Trans Mountain’s route selection process, route selection criteria, and level of detail for its alternative means assessment appropriate.

For any outstanding land matters, the NEB Act includes provisions (sections 85 to 103) to deal with land acquisition. Should there be a dispute between Trans Mountain and landowners, the NEB Act provides mechanisms for dispute resolution.

NEB approval

On May 19, 2016, the NEB found that the Project is in the public interest and recommended that the Certificate be issued under section 52 of the NEB Act for the construction and operation of the Project. The Certificate would be subject to 157 terms and conditions that the Board considers necessary or desirable in the public interest, if the Governor in Council were to direct the Board to issue the Certificate. If Trans Mountain does not proceed with the construction of the Project, the sunset clause provides that the Certificate shall expire five years from the date of the Certificate, unless construction in respect of section 52 facilities has commenced by that date (Condition # 5).

Pursuant to section 29 of CEAA, 2012, the Report also states 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. The Report includes the Board’s recommended follow-up program to be implemented in respect of the Project.

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 enhance Indigenous and public consultations as well as an assessment of upstream 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. Below is a summary of these activities.

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 (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 AB and B.C. attended by 2 400 people and 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.

On behalf of the Panel, NRCan designed and managed at the same time 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

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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 per cent of questionnaire participants supported the Project, while 98 per cent of those who sent emails opposed it. However, the majority of participants in the Panel meetings opposed the Project.

In making its decision on the Project, the Government considered the Panel’s report and the questions the Panel outlined.

Crown consultation

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. The Crown relied on both the NEB review process and its own consultative activities to meet its duty to consult potentially impacted Indigenous groups. Consistent with the approach taken on other major pipeline projects, the consultation process with potentially impacted Indigenous groups was carried out in four phases. The phases are

(a) 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; (b) 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. The Crown used the NEB hearing process, as well as correspondence and meetings with Indigenous groups, to inform itself about the Project and the nature of any adverse impacts on Aboriginal rights and title, to understand Indigenous groups’ issues and concerns, and to consider mitigation measures proposed by the proponent and/or recommended by the NEB in the form of terms and conditions (including proponent commitments that may address potential adverse impacts on rights); (c) 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. The Crown also used these meetings to identify and discuss accommodation proposals and incremental measures being considered by the Government of Canada. (d) Phase IV — Regulatory authorizations (if necessary): following a GIC decision to approve the Project, implicated departments will consult with Indigenous groups prior to the issuance of any necessary regulatory permits.

To enable deeper consultation with Indigenous peoples, on June 3, 2016, the Governor in Council approved a four-month extension to the legislated timelines for a decision on the Project, moving the final date for a decision to December 19, 2016.

Government response to what was heard

Environment a. Risk of spills

Communities are deeply concerned about the risk and impacts that oil spills pose to their land, air, water and communities. In addition to the terms and conditions related to spills identified by the NEB, land-based oil spills are subject to both federal and provincial jurisdiction. Federally regulated pipelines are subject to NEB regulation and oversight, which requires operators to develop comprehensive emergency management programs and collaborate with local responders in the development of these programs. B.C. also recently implemented regulations under the provincial Environmental Management Act to strengthen provincial oversight and require industry and government to collaborate in response to spills in B.C.

The Government recently updated its world-leading pipeline safety regime through the Pipeline Safety Act, which came into force in June 2016. The Act implements $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 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.

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With respect to ship source spills, the Government recently announced $1.5 billion in new investment in a national Oceans Protection Plan to enhance its world-leading marine safety regime. The Oceans Protection Plan has four main priority areas:

• creating a world-leading marine safety system that improves responsible shipping and protects Canada’s waters, including new preventive and response measures; • restoring and protecting the marine ecosystems and habitats, using new tools and research; • strengthening partnerships and launching co-management practices with Indigenous communities, including building local emergency response capacity; and • investing in oil spill cleanup research and methods to ensure that decisions taken in emergencies are evidence-based.

The Plan responds to concerns related to potential marine spills by strengthening the Coast Guard’s ability to take command in marine emergencies, toughening requirements for industry response to incidents, and by enhancing Indigenous partnerships. b. Impacts on Southern resident killer whale

In its report, the NEB concluded that the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale population, which is of unique cultural and spiritual significance to Indigenous groups. As a result, the Board has encouraged other regulatory authorities, such as TC and DFO, to explore initiatives that would aim to reduce the potential effects of marine vessels on marine mammals.

The Government is committed to implementing actions to address multiple cumulative effects to support recovery of the Southern resident killer whale. The proposed Action Plan for Southern resident killer whales sets out the measures to achieve recovery objectives and DFO is working with partners to complete those actions. Trans Mountain committed to a series of actions supporting the recovery of the Southern resident killer whale. 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.

The recently announced Oceans Protection Plan provides new tools to mitigate potential impacts, including a Coastal Environmental Baseline and Cumulative Effects Program; a whale detection system; a new Coastal Restoration Fund; and an immediate science-based review of the effectiveness of current management and recovery actions under way for the Southern resident killer whale, which will be completed by summer 2017 and seek to identify further areas for immediate improvement in recovery efforts and priorities for new or enhanced action efforts.

The Government will work in partnership with Indigenous groups in implementing actions. Indigenous groups possess unique knowledge of the Southern resident killer whale that needs to be fully integrated into the plan, and the success of the recovery is essential to their culture and way of life. c. Climate change

ECCC assessed the GHG emissions associated with the upstream activities directly related to the Project and released a draft assessment report for public comment on May 19, 2016. ECCC projects that the upstream GHG emissions in Canada resulting from upstream activities associated with the expanded Trans Mountain pipeline could range from 20.3 to 25.7 megatonnes (Mt) of CO2 equivalent per year. When considering only the additional capacity that the Project is adding to the Trans Mountain pipeline system, upstream emissions could range from 13 to 15 Mt of CO2 equivalent per year.

The assessment concluded that incremental emissions are unlikely to be expected as oil production is expected to grow by more than the capacity of the expanded line regardless of whether the pipeline is built. The final assessment report has been released and posted on the Canadian Environmental Assessment Agency’s document online registry.

Through its Climate Leadership Plan, the Government of Alberta is committing to cap oil sands emissions at 100 Mt of CO2 per year. This will limit future potential upstream GHG emissions associated with the Project. The Project does not impact the emissions projections that underpin the plan to meet or exceed Canada’s 2030 target.

Impacts on Indigenous rights and interests a. Adequacy of consultations

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Near the end of the extended time frame for decision, several Indigenous groups requested further extensions of the legislated time limit in order to undertake further consultations. The Government of Canada considered these requests and decided not to further extend the timelines. After almost two years of consultations and with reference to the consultation record, the Government of Canada determined that consultations had been reasonable both procedurally and substantively, and that there was no reasonable prospect that additional time would alter or enhance the outcome.

To evaluate the adequacy of the consultations, including accommodations, 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 is reflected in a written report, the Consultation and Accommodation Report (CAR). The CAR documents the Crown’s consultation process with 117 Indigenous groups.

Although not every concern raised by Indigenous groups was expressly addressed or accommodated through the process, accommodations were assessed as being reasonable in the circumstances. The Crown’s assessment took into account Project modifications, proponent commitments and agreements entered into with Indigenous groups, the Board conditions that would be legally binding in a potential Certificate of Public Convenience and Necessity and British Columbia’s Environmental Assessment Office’s proposed conditions for a provincial Environmental Assessment certificate. Additionally, it was recognized that other measures would serve to lessen or avoid potential adverse impacts on Indigenous interests including the commitment to establish an Indigenous Advisory and Monitoring Committee, the Action Plan for the Recovery of the Northern and Southern resident killer whale (mandated under the SARA), and the newly announced Oceans Protection Plan.

Taking into account all of the proposed measures including the NEB Conditions and Project-related Crown commitments, the Crown concluded that Indigenous concerns would be reasonably accommodated and that the consultation process for the Project upheld the honour of the Crown. b. Environmental and economic interests

While the Government expects that the enforceable conditions imposed and overseen by the NEB will serve to address, avoid, and mitigate the majority of potential and known impacts to Aboriginal rights associated with the Trans Mountain Expansion project, the Government is also advancing two new initiatives to respond to environmental and economic interests expressed during consultations, an Indigenous Advisory and Monitoring Committee and an Economic Pathways Partnership.

These measures are designed to address impacts to rights and respond to broader issues raised during consultations — namely, Indigenous communities’ role in project governance, oil spill response, and economic benefits.

First, the Government will co-develop an Indigenous Advisory and Monitoring Committee with Indigenous groups along the Trans Mountain pipeline corridor, with the understanding that the Committee would only become operational when a Final Investment Decision is made by the proponent. Co-development of this governance body acknowledges and respects the unique connection and constitutionally protected interests that Indigenous people have over their traditional territories. It will provide a predictable, transparent and accountable forum for Indigenous communities to share information and to advise the NEB over the project life-cycle.

The Committee will be 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, with a near-term focus on construction and post-construction phases of the Trans Mountain Expansion pipeline.

The Government also recognizes a majority of potentially impacted Indigenous communities along the pipeline and marine shipping routes have underscored that this project needs to result in socio-economic benefits for their communities. Through NEB conditions 11 and 12, the proponent will be required to include Indigenous Peoples in employment and business opportunities, as well as training and education plans for the Project. The Government will also advance a new Economic Pathways Partnership to complement actions taken by the proponent to support Indigenous groups taking full advantage of these opportunities. In this regard, the Government will mobilize existing federal programs to communities along the Trans Mountain Expansion pipeline in a timely and efficient manner so that these communities have the tools to maximize every opportunity that the Project presents.

Conclusions

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In making its decision on the Project, the Government has considered, among other things, the NEB’s recommendation 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.

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

(a) pursuant to subsection 31(1) of the Canadian Environmental Assessment Act, 2012, and taking into account the terms and conditions identified by the NEB, determines that the Trans Mountain Expansion Project is not likely to cause significant adverse environmental effects, and directs the NEB to issue an environmental assessment decision statement; (b) pursuant to subsection 54(1) of the National Energy Board Act, directs the NEB to issue Certificate of Public Convenience and Necessity to Trans Mountain for the proposed construction and operation of the Project, subject to the 157 terms and conditions identified by the NEB; and (c) pursuant to subsection 21(2) of the National Energy Board Act, approves the issuance by the NEB to Trans Mountain Amending Orders AO-002-OC-49 and AO-003-OC-2.

Department contact

For more information, please contact

Terry Hubbard Director General Petroleum Resources Branch Natural Resources Canada Telephone: 343-292-6165

ORDER AO-002-OC-49

IN THE MATTER OF the National Energy Board Act (the 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.

BEFORE the Board on 3 May 2016.

WHEREAS the Board issued Certificate of Public Convenience and Necessity OC-49 (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), and CPCN OC-49 came into force on 30 November 2006;

AND WHEREAS through a series of transactions, Trans Mountain is the current holder of CPCN OC-49;

AND WHEREAS the application included a request to transfer the operation of the active 150 km NPS 36 pipeline between Hinton, Alberta and Hargreaves (a location near Rearguard, British Columbia) from the TMX- Anchor Loop to put into service on Line 2 of the Project (Transfer Segment), as required for operation of Line 2 of the Project;

AND WHEREAS the application included a request for an order pursuant to section 44 of the OPR for the deactivation of the Wolf Pump Station as it would not be required for service for the Project;

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

AND WHEREAS the Panel 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’s recommendations and decisions on the application for the Project, and reasons, are set out in the OH-001-2014 National Energy Board Report (Report);

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AND WHEREAS the Board submitted its Report to the Minister recommending that a new Certificate be issued and two existing Certificates be amended for the Project pursuant to subsections 52(1) and 21(2) of the NEB Act;

AND WHEREAS the Board is of the view that, should the Project be approved, it is necessary to vary CPCN OC- 49 to remove the Transfer Segment as this segment would now be part of the Certificate authorizing construction and operation of Line 2 of the Project;

AND WHEREAS the attached Schedule A describes specifications for the Transfer Segment, and the Wolf Pump Station being deactivated;

AND WHEREAS the Governor in Council, by Order in Council No. P.C. 2016-1069 dated the 29 November 2016, has approved the issuance of this Amending Order to CPCN OC-49;

IT IS ORDERED THAT, pursuant to section 21 of the Act, CPCN OC-49 is hereby varied to reflect the removal of the Transfer Segment; and pursuant to section 44 of the OPR, the deactivation of the Wolf Pump Station is approved, subject to the conditions marked as applicable in the “OC49” column below.

In these conditions, the following terms are defined as:

Appropriate Federal, Provincial, Regional or Municipal government departments or Government agencies with jurisdiction, statutory obligations, regulatory oversight or a Authorities decision-making role in relation to the subject-matter of the specific condition. For location-specific conditions or phased filings, this is limited to those with such a role in relation to the geographic location to which the condition filing applies. (Aboriginal groups are treated separately and listed separately in each applicable condition.)

Commencing The Project is opened for oil storage and transmission. Unless otherwise operations specified, “prior to commencing operations” means an action must be completed prior to commencing operation of any component of the Project, and “after commencing operations” means an action must be completed after all components of the Project are operating.

Construction Any in-field activity that may have an effect on the environment and that is necessary for installing, deactivating, reactivating (see footnote 4) or decommissioning, or preparing to install, deactivate, reactivate (see footnote 5) or decommission, any component of the Project. Construction activities include, clearing, mowing, grading, trenching, drilling, boring, and blasting. Construction activities do not include activities associated with routine surveying operations or data collection activities, such as geotechnical investigations (e.g., geophysical surveys, bore holes, and test pits), activities required to obtain integrity information on the reactivation pipeline segments, or operations and maintenance activities (to which NEB “Operations and Maintenance Activities on Pipelines under the National Energy Board Act – Requirements and Guidance Notes” apply).

Construction at the Westridge Marine Terminal also includes construction activities occurring in the marine environment that are necessary for installing, or preparing to install, any component of the Westridge Marine Terminal expansion. This includes dredging, blasting, and pile drilling.

Consultation Unless otherwise specified in a condition, Trans Mountain’s consultation must be carried out in a manner that:

a) provides, to those to be consulted:

i) notice of the matter in sufficient form and detail to allow them to prepare their views or information on the matter; ii) a reasonable period for them to prepare those views or information; and

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iii) an opportunity to present those views or information to Trans Mountain; and

b) considers, fully and impartially, the views or information presented; c) provides, to those in a) who request it, a draft summary of the consultation undertaken with that party, and a reasonable period for them to provide feedback to Trans Mountain; and d) provides, to those in a) who request it, a copy of the NEB filing receipt for, or notice of, the condition filing to which the consultation pertained.

Dry Dry commissioning involves the systematic inspection and testing of commissioning mechanical, piping, electrical, instrumentation, control, and communications systems, prior to the introduction of process fluids, to ensure that they are ready for the introduction of fluids and are expected to function as intended.

For approval Where a condition requires a filing or filings for NEB approval, Trans Mountain must not commence the indicated activity until the NEB issues its written approval of that filing or filings.

Including Use of this term, or any variant of it, is not intended to limit the elements to just those listed. Rather, it implies minimum requirements with the potential for augmentation, as appropriate.

Line 1 After the expansion, the 1,147 km Line 1 pipeline will consist of, combined, the following pipeline segments, including segments to be reactivated and currently operating TMPL segments:

• the existing 229 km of 609.6 mm outside diameter (NPS 24) and 89 km of 762.0 mm outside diameter (NPS 30) pipeline segments from Edmonton, AB, to Hinton, AB; • the reactivated 150 km of NPS 24 pipeline segment from Hinton, AB, to Hargreaves, B.C. (built in 1957); • the existing 273 km of NPS 24 pipeline segment from Hargreaves, B.C., to Darfield, B.C.; • the reactivated 43 km of NPS 24 pipeline segment from Darfield, B.C., to Black Pines, B.C. (built in 1953); • the existing 325 km of NPS 24 and 38 km of NPS 30 pipeline segments from Black Pines, B.C., to the Burnaby Terminal, B.C..

Line 2 After the expansion, the approximately 1,180 km Line 2 pipeline will consist of, combined, the new transmission pipeline segments and the two currently operating TMPL segments transferring to Line 2 service:

• approximately 339 km of new 914 mm outside diameter (NPS 36) pipeline from Edmonton, AB, to Hinton, AB; • the existing 150 km of NPS 36 pipeline segment from Hinton. AB, to Hargreaves, B.C. (built in 2008); • approximately 121 km of new 1067 mm outside diameter (NPS 42) pipeline from Hargreaves, B.C., to Blue River, B.C.; • approximately 158 km of new NPS 36 pipeline from Blue River, B.C., to Darfield, B.C.; • the existing 43 km of NPS 30 pipeline segment from Darfield to Black Pines (built in 1957); and • approximately 368 km of new NPS 36 pipeline from Black Pines, B.C., to the Burnaby Terminal.

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Monitoring Observing the environmental and socio-economic effects of the Project for the purposes of assessing and measuring the effectiveness of mitigation measures undertaken, identifying unanticipated environmental and socio- economic issues, and, based on the results of these activities, determining any remedial actions required.

From an engineering perspective, monitoring involves regularly observing pipelines, terminals and pump stations (e.g., through surveys, patrols, inspections, testing, instrumentation) to ensure their operation is within defined parameters, with the goal of identifying any issues or potential concerns (e.g., pipeline integrity, geohazards, erosion, security) that may compromise the protection of the pipelines, terminals, pump stations, property, persons, and the environment.

Monthly (in Unless otherwise specified in a condition, a monthly filing shall be made on relation to a the 5th working day of the calendar month following the month to which the condition filing filing pertains. or posting)

NEB or Board National Energy Board

New delivery Collectively, the two new NPS 30 oil delivery lines between Trans pipelines Mountain’s Burnaby Terminal and its Westridge Marine Terminal (approximately 2.6 km for the tunnel option and 3.6 km for the street option).

Officer of the Where a condition requires a filing to be signed by an officer of the company company, the filing must include a statement confirming that the signatory to the filing is an officer of the company duly authorized for that purpose.

Project The Trans Mountain Expansion Project in all its components, including pipeline construction, reactivation, and changes to operating conditions resulting in operation as Line 1 and Line 2; deactivation, reactivation, construction and operation of or at the respective pump stations; decommissioning of 2 tanks and construction and expanded operation at the existing Edmonton, Sumas and Burnaby Terminals and the Westridge Marine Terminal; construction and operation of the new delivery pipelines; and all infrastructure.

The Project does not include Project-related marine shipping.

Quarterly (in Unless otherwise specified in a condition, a quarterly filing shall be made on relation to a the 10th working day of the quarter following the quarter to which the filing condition filing pertains. or posting)

Temporary All structures or sites necessary for pipeline, terminal and pump station infrastructure construction, reactivation, deactivation, modification and expansion approved as part of the Project. Examples of infrastructure include construction camps, stockpile sites, contractor yards, laydown areas, temporary work space, borrow pits, roads, bridges, snow pads, and temporary power supply lines necessary for operating infrastructure and equipment during the construction phase.

Third party (in An independent consultant, expert, or contractor that, except for receiving relation to a payment for acting as a third party, is unaffiliated with Trans Mountain,

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report, review or Kinder Morgan Canada Inc., the principal consultants of either, or any other assessment) corporate entity with a financial interest in the Project. A third party is, because of their knowledge, training, and experience, qualified and competent to perform an assessment or review, and was not involved in developing the manual, report, plan, program, or policy being assessed or reviewed.

TMPL The existing operating Trans Mountain Pipeline system.

Trans Mountain Trans Mountain Pipeline ULC, as general partner of Trans Mountain Pipeline L.P.

Government authorities are mentioned in certain conditions. If a particular authority’s name changes in the future, Trans Mountain’s requirements relating to that authority would rest with its successor. Similarly, if a particular authority’s function is assumed by another authority, Trans Mountain’s requirements relating to that function would rest with the new authority.

Note: Due to its size, the table is presented on a separate Web page. Please click on the following link to view the table.

SCHEDULE A

National Energy Board Order AO-002-OC-49

Transfer Segment specifications

Location Hinton, AB to Hargreaves, BC

Project Type Modification – transfer segment to Line 2 service

Approximate Length (km) 150

Minimum Wall Thickness (mm) 11.8

Outside Diameter 914 mm (NPS 36)

Pipe Grade 483 MPa (X70)

Pipe Material Standard API 5L

External Coating Fusion bond epoxy

Product Low vapour pressure crude oil

Maximum Operating Pressure (kPa) 9 930 and 10 875

Pumping facility specifications

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Project Type Deactivation

Facility Type Pump station

Wolf Pump Station Approximate KP (see footnote 7) 188 Yellowhead Location (see footnote County, AB 6) Lat.: 53.59529505 Long.: -116.0558409

Description Two pump units at 3 730 kW (5,000 hp)

Product Low vapour pressure crude oil

ORDER AO-003-OC-2

IN THE MATTER OF the National Energy Board Act (the 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, 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.

BEFORE the Board on 3 May 2016.

WHEREAS the Board issued Certificate of Public Convenience and Necessity OC-2 (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 through a series of transactions, Trans Mountain is the current holder of OC-2;

AND WHEREAS the application included a request for authorization to:

• decommission one tank at the Edmonton Terminal West Tank Area and one tank at the Burnaby Terminal; • reactivate a150 km NPS 24 pipeline segment between Hinton, Alberta and Hargreaves (a location near Rearguard, British Columbia), a 43 km NPS 24 pipeline segment from Darfield to Black Pines, and the Niton Pump Station, all of which were authorized under CPCN OC-2; and • remove from CPCN OC-2 the 43 km NPS 30 pipeline segment between Darfield and Black Pines (transferring from the existing Trans Mountain Pipeline system to Line 2) (collectively Line 1 Work).

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

AND WHEREAS the Board’s recommendations and decisions on the application for the Project, and reasons, are set out in the OH-001-2014 National Energy Board Report (Report);

AND WHEREAS the Board is of the view that, should the Project be approved, amendments to vary CPCN OC-2 are required;

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AND WHEREAS the attached Schedule A describes all pipe segments that will form Line 1 upon Project completion, and specifications for Line 1 Work;

AND WHEREAS the Governor in Council, by Order in Council No. P.C. 2016-1069 dated the 29 November 2016, has approved the issuance of 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 Line 1 Work, subject to the conditions marked as applicable in the “OC2” column below.

In these conditions, the following terms are defined as:

Commencing The Project is opened for oil storage and transmission. Unless otherwise operations specified, "prior to commencing operations" means an action must be completed prior to commencing operation of any component of the Project, and "after commencing operations" means an action must be completed after all components of the Project are operating.

Construction Any in-field activity that may have an effect on the environment and that is necessary for installing, deactivating, reactivating (see footnote 8) or decommissioning, or preparing to install, deactivate, reactivate (see footnote 9) or decommission, any component of the Project. Construction activities include, clearing, mowing, grading, trenching, drilling, boring, and blasting. Construction activities do not include activities associated with routine surveying operations or data collection activities, such as geotechnical investigations (e.g., geophysical surveys, bore holes, and test pits), activities required to obtain integrity information on the reactivation pipeline segments, or operations and maintenance activities (to which NEB "Operations and Maintenance Activities on Pipelines under the National Energy Board Act – Requirements and Guidance Notes" apply).

Consultation Unless otherwise specified in a condition, Trans Mountain’s consultation must be carried out in a manner that:

a) provides, to those to be consulted:

i) notice of the matter in sufficient form and detail to allow them to prepare their views or information on the matter; ii) a reasonable period for them to prepare those views or information; and iii) an opportunity to present those views or information to Trans Mountain; and

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d) provides, to those in a) who request it, a copy of the NEB filing receipt for, or notice of, the condition filing to which the consultation pertained.

Line 1 After the expansion, the 1,147 km Line 1 pipeline will consist of, combined, the following pipeline segments, including segments to be reactivated and currently operating TMPL segments:

From an engineering perspective, monitoring involves regularly observing pipelines, terminals and pump stations (e.g., through surveys, patrols,

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inspections, testing, instrumentation) to ensure their operation is within defined parameters, with the goal of identifying any issues or potential concerns (e.g., pipeline integrity, geohazards, erosion, security) that may compromise the protection of the pipelines, terminals, pump stations, property, persons, and the environment.

NEB or Board National Energy Board

The Project does not include Project-related marine shipping.

Third party (in An independent consultant, expert, or contractor that, except for receiving relation to a payment for acting as a third party, is unaffiliated with Trans Mountain, report, review or Kinder Morgan Canada Inc., the principal consultants of either, or any other assessment) corporate entity with a financial interest in the Project. A third party is, because of their knowledge, training, and experience, qualified and competent to perform an assessment or review, and was not involved in developing the manual, report, plan, program, or policy being assessed or reviewed.

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TMPL The existing operating Trans Mountain Pipeline system.

Trans Mountain Trans Mountain Pipeline ULC, as general partner of Trans Mountain Pipeline L.P.

Note: Due to its size, the table is presented on a separate Web page. Please click on the following link to view the table.

SCHEDULE A

National Energy Board Order AO-003-OC-2

Line 1 pipeline specifications

Kamloops, Black Edson, Hinton, AB BC to Edmonton, Hargreaves, Darfield, Pines, BC AB to to Burnaby Location AB to BC to BC to Black to Hinton, Hargreaves, Tank Edson, AB Darfield, BC Pines, BC Kamloops, AB BC Terminal, BC BC

Existing Existing To be Existing To be Existing Existing Project Type segment segment reactivated segment reactivated segment segment

Approximate 229 89 150 273 43 38 325 Length (km)

609 mm 762 mm 609 mm 609 mm 609 mm 762 mm 609 mm Outside (NPS 24) (NPS (NPS 24) (NPS 24) (NPS 24) (NPS 30) (NPS 24) Diameter 30)

Pipe Grade 359 MPa (X52)

Pipe API 5L Material Standard

External Coal tar enamel Coating

Product Low vapour pressure crude oil

Tank decommissioning specifications

Project Type Decommissioning

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Facility Type Tank

Edmonton Terminal West Tank Area Edmonton, Burnaby Terminal Burnaby, Location AB BC

Tank Number 9 74

Shell 12 720 m3 (80,000 bbl) 12 720 m3 (80,000 bbl) Capacity

Pipeline reactivation specifications

Hinton, AB to Hargreaves, BC Darfield, BC to Black Pines, Location BC

Project Type Reactivation

Approximate Length (km) 150 43

Wall Thickness (mm) 7.9 7.9

Outside Diameter 610 mm (NPS 24)

Pipe Grade 359 MPa (X52) 359 MPa (X52)

Pipe Material Standard API 5L

External Coating Coal tar enamel

Product Low vapour pressure crude oil

Maximum Operating To be established based on successful hydrostatic testing in Pressure (kPa) accordance with CSA Z662

Pumping facility reactivation specifications

Project Type Reactivation

Facility Type Pump station

Niton Pump Station Approximate KP (see footnote 11) 173 Niton Location (see footnote Junction, AB 10) Lat.: 53.61513981; Long.: -115.8433636

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Description Two pump units at 1 492 kW (2,000 hp)

Product Low vapour pressure crude oil

Transfer segment pipeline specifications

Location Darfield, BC to Black Pines, BC

Project Type Modification – transfer segment to TMEP Line 2 service

Approximate Length (km) 43

Wall Thickness (mm) 11.13

Outside Diameter 762 mm (NPS 30)

Pipe Grade 359 MPa (X52)

Pipe Material Standard API 5L

External Coating Coal tar enamel

Product Low vapour pressure crude oil

Maximum Operating Pressure (kPa) 3 660 to 8 233

Footnote 1 National Energy Board Report: National Energy Board Report —Trans Mountain Expansion Project — OH-001- 2014, May 2016, pp. 499–503. Footnote 2 For detailed information on ECCC’s assessment regarding other subject matters, see the NEB Report entitled National Energy Board Report — Trans Mountain Expansion Project — OH-001-2014, dated May 2016. Footnote 3 These include Condition # 52, Condition # 53, Condition # 54, Condition # 55, Condition # 79 and Condition # 137. Footnote 4 Excluding engineering assessment and operations and maintenance activities required to meet Conditions 19 and 31. Footnote 5 Excluding engineering assessment and operations and maintenance activities required to meet Conditions 19 and 31. Footnote 6 Latitude and Longitude are provided in World Geodetic System 84 (WGS84) format Footnote 7 Kilometre Post – used to identify locations along Line 1 Footnote 8 Excluding engineering assessment and operations and maintenance activities required to meet Conditions 19 and 31.

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Footnote 9 Excluding engineering assessment and operations and maintenance activities required to meet Conditions 19 and 31. Footnote 10 Latitude and Longitude are provided in World Geodetic System 84 (WGS84) format Footnote 11 Kilometre Post – used to identify locations along Line 1

Date modified: 2016-12-12

http://www.gazette.gc.ca/rp-pr/p1/2016/2016-12-10/html/sup1-eng.php 10/25/2017 THIS IS EXHIBIT "Il" Referred to in the Affidavit of Michael Davies Sworn before me this 26th day of October A.D.2017

OATHS IN AND FOR BRITISH COLUMBIA

SIIANNON DAVIDSON Barrister & Solicitor Osler, Hoskin & Harcourt LLP Suite 1700, Guinness Tower 1055 West Hasting Street Vancouver,Bc V6E2E9 Telephone : 604.692.27 5 4 Prime Minister Justin Trudeau’s Pipeline Announcement | Prime Minister of Canada Page 1 of 5

Prime Minister Justin Trudeau’s Pipeline Announcement

Prime Minister Justin Trudeau delivers remarks and holds a media availability at the National Press Theatre in Ottawa.

Ottawa, Ontario - November 30, 2016 CHECK AGAINST DELIVERY Good afternoon everyone. Thank you for taking the time to join us today. Just over a year ago, Canadians elected a new government. Their marching orders for us were clear: build an economy that works for me and my family, and protect the environment so we can leave a better, cleaner country to our kids. Voters rejected the old thinking that what is good for the economy is bad for the environment. They embraced the idea that we need strong environmental policies if we expect to develop our natural resources and get them to international markets.

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Canadians know that strong action on the environment is good for the economy. It makes us more competitive, by fostering innovation and reducing pollution. Canadians value clean air and water, beautiful coasts and wilderness, and refuse to accept that they must be compromised in order to create growth. We agree. Since last November, we have worked hard to put in place a policy that gives life to these values. A new policy that we believe will create good middle class jobs, and protect the environment for our kids and grandkids. We approved natural resource projects that meet the highest standards of environmental protection. We created a policy to put a price on pollution, and an Ocean Protection Plan to preserve our coasts. And we just announced our intention to phase out coal-powered electricity in Canada by 2030, all while expanding clean power sources. This phase out will prevent more than 1,000 premature deaths and save taxpayers billions of dollars in health costs. We are doing all of this because we know the world is changing, and Canada must change with it. Climate change is real. It is here. And it cannot be wished or voted away. Canadians know this, and they know we need to transition to a clean energy economy. We owe it to ourselves to make our economy more competitive, and to our kids to leave them a cleaner environment. But we also know that this transition will take investment, and it won’t happen in a day. We need to create good jobs and strong growth to pay for it. Canada is a country rich in energy of all kinds. Conventional and renewable. The energy of today and tomorrow. That is a unique and tremendously positive place to be in the world. I have said many times that there isn’t a country in the world that would find billions of barrels of oil and leave it in the ground while there is a market for it. But it isn’t enough to just use that resource for our short-term interest. Our challenge is to use today’s wealth to create tomorrow’s opportunity. Ultimately, this is about leaving a better country for our kids than the one we inherited from our parents. Today, we are taking a strong step in that direction.

We are here to announce the Government of Canada’s decisions on major energy projects, and the fulfillment of some very significant commitments we made to Canadians during last fall’s election campaign.

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We said that major pipelines could only get built if we had a price on carbon, and strong environmental protections in place. We said that Indigenous peoples must be respected, and be a part of the process. We also said that we would only approve projects that could be built and run safely. And that’s how we’ve come to our decisions today. First, the Government of Canada has approved the Kinder Morgan Trans Mountain Expansion Project. This pipeline will twin a line that has been in operation since 1953, which extends from Edmonton, Alberta, to Burnaby, British Columbia. The project will effectively triple our capacity to get Canadian energy resources to international markets beyond the Unites States. It will create 15,000 new, middle class jobs – the majority of them in the trades. This major initiative will get hardworking Canadians back to work, put food on the table for middle class families, and grow and strengthen our communities. It will give much needed new hope to thousands of hard-working people in Alberta’s conventional energy sector, who have suffered a great deal over the past few years. Aside from the many and obvious economic benefits, we approved this project because it meets the strictest of environmental standards, and fits within our national climate plan. We will require that Kinder Morgan meet or exceed all 157 of the binding conditions set out by the National Energy Board. These conditions address potential impacts on Indigenous communities, the protection of local wildlife, and the offset of greenhouse gas emissions during construction. And let me say this definitively: We could not have approved this project without the leadership of Premier Notley, and Alberta’s Climate Leadership Plan – a plan that commits to pricing carbon and capping oilsands emissions at 100 megatonnes per year. We want to be clear on this point, because it is important and sometimes not well understood. Alberta’s climate plan is a vital contributor to our national strategy. It has been rightly celebrated as a major step forward by industry and the environmental community. It caps emissions from oilsands over the mid-term, but allows for production to increase from present levels. Today, Canada’s pipelines are operating at full capacity. That means any significant new production must find another way to get to market. Those modes of transport are less safe than pipelines. Indeed, we know that new, state of the art pipelines provide the safest route to get our resources to market. This is not an argument. It is a fact. So from this perspective, creating new pipeline capacity is the most responsible decision we could make to ensure public safety and mitigate risk.

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We also could not approve this project without the best in class marine safety standards and capability we are putting in place through the Government of Canada’s new Oceans Protection Plan. The Trans Mountain expansion will increase vessel traffic in the Burrard Inlet by 13% overall, and the Oceans Protection Plan will make sure that any risk coming from increased vessel traffic in Burrard Inlet is properly mitigated. We understand — and share — the deep and abiding sense of responsibility British Columbians feel for our spectacular west coast. Indeed, it is a personal issue for me. I spent much of my childhood on the coast and on the water with my grandparents. I worked and lived in BC for years as a teacher. Now, I have heard and listened very carefully to the many diverse perspectives that exist in BC on this project. Indeed, one of its most articulate and substantive critics is a caucus colleague, Terry Beech. Others will be opposed to this project for their own reasons. We respect that, and we respect their right to hold and voice their beliefs. But to them — and to all Canadians — I want to say this: if I thought this project was unsafe for the BC coast, I would reject it. This is a decision based on rigorous debate, on science and on evidence. We have not been and will not be swayed by political arguments -- be they local, regional or national. We have made this decision because we are convinced it is safe for BC, and it is the right one for Canada. It is a major win for Canadian workers, Canadian families, and the Canadian economy. Second, we have also approved the Line 3 Replacement Project. This project replaces over 1,000km of an existing pipeline from Hardisty, Alberta, to Gretna, Manitoba. It will create 7,000 new, good jobs for tradespeople. It will be required to meet or exceed 37 binding conditions from the National Energy Board. Fundamentally, this is a safety issue. On Line 3, the reality is this: This aging pipeline is in dire need of replacement. Once completed, this new infrastructure will increase efficiency, improve workplace and environmental safety, and ensure that the latest technology is in place to prevent leaks. Trans Mountain’s unique strategic value is it will give traditional Canadian energy resources access to international markets beyond the United States. Line 3 will renew aging infrastructure to ensure we can continue to supply resources to our most important and valued trading partner. Taken together, these projects will create thousands of good, middle class jobs for Canadians. They’ll also generate billions of dollars in government revenue at all levels. That’s money that can be invested in our hospitals, roads, and clean energy initiatives.

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These projects have received government approval because they meet our standards on the environment. But not all pipelines meet these strict criteria. Today, we are also announcing that the Government of Canada has directed the National Energy Board to dismiss the application for the Northern Gateway Pipelines Project. It has become clear that this project is not in the best interests of the local affected communities, including Indigenous peoples. The Great Bear Rainforest is no place for a pipeline, and the Douglas Channel is no place for oil tanker traffic. Even before we formed government, we were clear about our intentions to protect the Great Bear Rainforest and Sea. This unique and beautiful ecosystem thrives with diverse wildlife, and supplies an abundant and sustainable economy to the tens of thousands of people who depend on its health. It is a jewel of Canada’s west coast. Finally, I am also pleased to announce that we will keep our commitment to implement a moratorium on crude oil tanker shipping on British Columbia’s north coast. After consulting at length with people who live and work there – including Indigenous partners – we’ve heard firsthand how detrimental crude oil tanker traffic is to this region. Very shortly, we’ll introduce legislation to make this tanker moratorium the law. As a grandson of BC, I strongly believe that this moratorium – coupled with the rejection of the Northern Gateway Pipeline – is the right call for the people of this province, and for Canada. The four decisions we’ve announced today were all made after rigorous consultation and examination of the evidence. We believe they will help provide the growth and resources we need to spur Canada’s clean energy transition. We believe they prove that responsible resource development can go hand in hand with strong environmental protection. We believe they are safe, responsible and in the interest of all Canadians. Most importantly, we believe they will help achieve the vital mission Canadians sent us here to achieve: to make progress. To leave a cleaner, more prosperous country to our kids than the one we inherited from our parents. These Decisions reflect a true team effort, and we are very much looking forward to taking your questions.

http://www.pm.gc.ca/eng/news/2016/11/30/prime-minister-justin-trudeaus-pipeline-annou... 12/1/2016 THIS IS EXHIBIT'0I2" Referred to in the Affidavit of Michael Davies Sworn before me this 26th dayof October A.D.2017

IO IN AND FOR BRITISH COLUMBIA

SHANNON DAVIDSON Barrister & Solicitor Osler, Hoskin & Harcourt LLP Suite 1700, Guinness Tower 1055 West Hasting Street Vancouver,Bc Y6E2E9 Telephone: 604.692.27 54 Government of Canada announces pipeline plan that will protect the environment and gro... Page 1 of 5

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 Share this page Government of Canada announces pipeline plan that will protect the environment and grow the economy

November 29, 2016 Ottawa Natural Resources Canada

A clear message has emerged through our government’s extensive consultations with Canadians: the economy and the environment go hand in hand. That is why we are pricing carbon pollution, making the most significant investment ever to protect Canada’s oceans and coastlines, instituting world-leading safety standards for pipelines by passing the Pipeline Safety Act, and have signed the Vancouver Declaration with the provinces and territories on clean growth and climate change.

Our commitments to renewable energy, investments in clean energy and protecting our coasts and oceans will grow our economy while protecting the environment Canadians cherish. Today, Canada’s Minister of Natural Resources, the Honourable Jim Carr, and Canada’s Minister of Transport, the Honourable Marc Garneau, announced several important decisions that will create more good, middle-class jobs while protecting environmentally-sensitive areas.

• Trans Mountain Expansion Project: the Government has approved Kinder Morgan’s Trans Mountain Expansion Project, subject to 157 binding conditions that will address potential Indigenous, socio-economic and environmental impacts, including project engineering, safety and emergency preparedness. This $6.8-billion project will create 15,000 new jobs during construction by twinning the existing Trans Mountain pipeline system between Edmonton, Alberta, and Burnaby, British Columbia. It will also provide access to global markets and generate significant direct

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economic benefits, including $4.5 billion in federal and provincial government revenues.

• Northern Gateway Pipelines Project: the Government has directed the National Energy Board (NEB) to dismiss Enbridge’s Northern Gateway Pipelines Project application. The Government has determined that the project is not in the public interest, given that it would result in crude oil tankers transiting through the sensitive ecosystem of the Douglas Channel, which is part of the Great Bear Rainforest.

• Tanker Moratorium: the Government has announced a moratorium on crude and persistent oil tankers along British Columbia’s north coast. This area spans the Alaska–B.C. border down to the point on B.C.’s mainland adjacent to the northern tip of Vancouver Island, and includes Haida Gwaii. The Government made this decision following consultations with stakeholders including Indigenous groups and communities. The Government will introduce legislation to implement the moratorium by the spring of 2017.

• Line 3 Replacement Project: the Government has approved Enbridge’s Line 3 Replacement Project, subject to 37 binding conditions that will address potential Indigenous, socio-economic and environmental impacts. This will ensure that the pipeline and facilities are built and operated in a manner that is safe for Canadians and the environment. This $4.8-billion project will replace 1,067 kilometres of existing pipeline from Hardisty, Alberta, to Gretna, Manitoba, to enhance its safety and integrity. The project will generate significant economic benefits, including $514.7 million in federal and provincial government revenues and 7,000 new jobs during construction. It also provides a vital link to the North American refinery market for Canadian oil.

In making its decision to approve the Trans Mountain Expansion Project and the Line 3 Replacement Project, the Government took into consideration a wide variety of information and data, including the NEB’s recommendation report, Environment and Climate Change Canada’s assessment of upstream greenhouse gas emissions, the views of Canadians and enhanced consultations with Indigenous peoples. The report from the Ministerial Panel for the Trans Mountain Expansion Project was also considered. The outcomes of all of these processes are available to Canadians online.

The Government of Canada is committed to working in partnership with Indigenous communities. To address specific interests identified by Indigenous groups and to build on existing partnerships some have with the proponent, the Government announced that it will co-develop advisory and monitoring committees with Indigenous communities to provide ongoing environmental monitoring for each of the two projects. The Government

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will also establish an Economic Pathways Partnership for each pipeline that will make it easier for Indigenous groups to access existing federal programs that help them participate in and benefit economically from this project.

In reaching its decision on the Northern Gateway Pipelines Project, the Government considered the Joint Review Panel Report, the views of Indigenous communities and those of other Canadians as represented to the Joint Review Panel, as well as the decision of the Federal Court of Appeal.

Quotes

“Our duty is to permit infrastructure so Canada’s resources get to market in a more environmentally-responsible way, creating jobs and a thriving economy. Today’s announcements also demonstrate that when the Government determines projects are not in the public interest, we will act accordingly and make the tough decisions.”

Jim Carr Canada’s Minister of Natural Resources

“Canadians expect the Government of Canada to help grow the economy while protecting the environment. This tanker moratorium is another example of how this can be achieved, and shows our commitment to establishing a world-leading marine safety system that meets the unique needs of Canada from coast-to-coast- to-coast.”

Marc Garneau Canada’s Minister of Transport

Related Documents Backgrounder: Trans Mountain Expansion Project - https://www.nrcan.gc.ca/energy/resources/19142 Backgrounder: Northern Gateway Pipelines Project - https://www.nrcan.gc.ca/energy/resources/19184 Backgrounder: Tanker Moratorium on British Columbia’s North Coast -

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http://news.gc.ca/web/article-en.do?mthd=tp&crtr.page=1&nid=1162439&crtr.tp1D=930 Backgrounder: Line 3 Replacement Project - https://www.nrcan.gc.ca/energy/resources/19188

Further information on each of these four decisions is available at Natural Resources Canada’s Energy Pipeline Projects page https://www.nrcan.gc.ca/energy/resources/19120.

Contacts Alexandre Deslongchamps Press Secretary Office of the Minister of Natural Resources 343-998-1533

Media Relations Natural Resources Canada Ottawa 343-292-6100

Delphine Denis Press Secretary Office of the Honourable Marc Garneau 613-991-0700

Media Relations Transport Canada 613-993-0055

NRCan’s news releases and backgrounders are available at www.news.gc.ca.

Search for related information by keyword Hon. James Gordon Carr Natural Resources Canada Nature and Environment

Date modified: 2016-11-29

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http://news.gc.ca/web/article-en.do?nid=1162449&tp=1 12/1/2016 THIS IS EXHIBIT OOI.3" Referred to in the Affidavit of Michael Davies

Sworn before me this 26th day of October A.D.2017

IN AND FOR BRITISH COLUMBIA

SHANNON DAVIDSON Barrister & Solicitor Osler, Hoskin & Harcourt LLP Suite 1700, Guinness Tower 1055 West Hasting Street Vancouver, BC V6E 2E9 Telephone: 604.692.27 54 Trans Mountain Expansion Project | Natural Resources Canada Page 1 of 8

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Home  Energy  Energy Resources  Energy Pipeline Projects

 Trans Mountain Expansion Project Trans Mountain Expansion Project

Project Summary

Key Facts • Twinning existing Edmonton–Burnaby pipeline • 89 percent of new construction along existing rights-of-way • $6.8-billion capital investment • 15,000 new jobs during construction • Strategic access to new global markets unlocks the true value of Canada’s natural resources • Project fits with Canada’s climate plan to 2030 • Projected greenhouse gas (GHG) emissions are within Alberta’s 100 megatonne cap • More than $300 million committed to Indigenous groups by proponent under mutual benefit and capacity agreements • $64.7 million to fund an Indigenous pipeline environment committee to ensure ongoing monitoring of the project • Oceans Protection Plan is most significant investment ever to protect our oceans and coastlines • Targeted action plan to promote the recovery of Southern Resident Killer Whale population

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(/sites/www.nrcan.gc.ca/files/energy/jpg/tmx_map.jpg)

Map of proposed Trans Mountain Pipeline Expansion Configuration.

► Text Version

Our Government has approved Kinder Morgan’s Trans Mountain Pipeline Expansion Project, subject to 157 binding conditions that will be enforced by the National Energy Board (NEB) before construction can begin, during construction and during operation. The conditions cover everything from project engineering and safety, to emergency preparedness, to air emissions and greenhouse gases. The Government has directed the NEB to issue a certificate for the project.

The project will involve building a new pipeline along the existing Trans Mountain pipeline route between Edmonton, Alberta, and Burnaby, British Columbia, which will increase the pipeline’s capacity from 300,000 barrels to 890,000 barrels per day. The project will also expand the Westridge Marine Terminal in Burnaby to permit it to increase the number of

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tankers per month it can receive from five to 34. The pipeline project will follow existing rights-of-way for 89 percent of its 1,147 kilometre length and add two berths to the existing marine terminal.

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The $6.8-billion project will have significant economic benefits as it is expected to provide $4.5 billion in government revenues. It will create 15,000 new jobs in Alberta and B.C. during construction, beginning in 2017. Indigenous groups will also benefit from jobs and business opportunities as a result of over $300 million in mutual benefit agreements they have signed with the proponent.

The project will diversify Canada’s export market access for oil to markets in Washington State and northeast Asia (Japan, China, South Korea and Taiwan) and to secondary markets in the United States such as California, Hawaii and Alaska. It will also help address an emerging bottleneck in Canada’s pipeline network, which might otherwise drive producers to greater reliance on transportation by rail.

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Before any shipping from the project begins, the Government will immediately develop a strong set of actions to implement the Recovery Plan for the Southern Resident Killer Whale designed to more than mitigate the effects of the project. Substantive new actions will be developed and implemented to address all three main stressors impeding the recovery of the Southern Resident Killer Whale population to:

• reduce the impact of noise from marine vessels on killer whales; • ensure there is sufficient food availability for the whales; and reduce the pressure on the whale population from persistent contaminants.

The national Oceans Protection Plan is designed to achieve a world-leading marine safety system for our country's unique context that will increase our government’s capacity to prevent and improve response to marine spills.

The NEB has imposed conditions to limit adverse environmental effects from construction during caribou mating and migration seasons, and from vessel-related GHG emissions.

Environment and Climate Change Canada has assessed the GHG emissions associated with the upstream activities related to the project and was not able to conclude definitively on whether emissions will increase as a result of the project.

The NEB considered the GHGs associated with increased marine shipping. All project- related vessels are required to follow international and federal regulations and apply best practices during operations. Tankers would carry an International Air Pollution Prevention Certificate and be required to have a volatile organic compound management plan.

To offset construction-related emissions, the NEB requires Trans Mountain to develop an offset plan to achieve zero net emissions.

Through its Climate Leadership Plan, the Government of Alberta is committing to cap oil

sands emissions at 100 megatonnes of CO2 per year. This will limit future potential upstream GHG emissions.

With all these factors, the Government believes that the project does not impact the emissions projections that underpin the plan to meet or exceed Canada’s 2030 target of at least 30 percent reduction below 2005 levels of emissions.

The Pipeline Safety Act, which came into force in June 2016, strengthens Canada’s pipeline safety system by enshrining the “polluter pays” principle into law. Companies will be held liable regardless of fault — $1 billion for operators of major oil pipelines — and required to have the financial resources to respond to potential incidents. The Act and its supporting regulations will ensure Canada leads the world in safety standards for federally regulated pipelines.

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Our government is committed to renewing the relationship with Indigenous peoples, based on the recognition of rights, respect, cooperation and partnership. We are committed to reconciliation and will work in partnership to address issues of importance to Indigenous communities.

Government officials consulted with 117 potentially affected Indigenous groups, and the outcomes of these consultations are publicly available in the Crown Consultation and Accommodation Report. The objective of these consultations was to discuss the extent to which the NEB’s recommended conditions for the project respond to concerns from Indigenous groups and identify any outstanding issues and potential accommodation measures to mitigate impacts on their rights.

The Government offered $2 million in participant funding to potentially impacted Indigenous groups in addition to the $2.3 million provided as part of the NEB review process.

To respond to what we heard during these consultations, the Government will provide up to $64.7 million in funding for an Indigenous advisory and monitoring committee that will work with federal regulators and the proponent to oversee environmental aspects throughout the project life cycle.

The Government also announced that it will establish an Economic Pathways Partnership, which will make it easier for Indigenous groups to access existing federal programs that will help support job training and business opportunities.

Furthermore, more than $300 million has been committed to Indigenous groups by the proponent under mutual benefit agreements which may include provisions for Indigenous employment, training and procurement opportunities.

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In addition, the Government of Canada listened to and worked with Indigenous communities and these discussions informed the Government of Canada’s national Oceans Protection Plan, which includes measures built on Canadian science, technology and traditional knowledge to protect Canada’s marine environment.

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In May 2016, Minister Carr named a three-member Ministerial Panel for the proposed project. The objective of the Ministerial Panel was to hear from Canadians and local communities and Indigenous groups along the proposed pipeline and shipping route to hear views that may not have been considered as part of the NEB review.

The panel held 44 public meetings in 11 Alberta and British Columbia communities along the proposed pipeline and marine shipping route. More than 650 Canadians spoke or made presentations to the panel at these public meetings, which were attended by 2,400 people. In addition, the panel received more than 20,000 email submissions.

To complement the panel’s activities, a web portal was also set up (in both official languages) to receive comments. In total, 35,258 people completed an online questionnaire about the project, which is publicly available.

These consultations complemented the NEB review process, where over 1,600 participants had the opportunity to provide evidence. Participants included Indigenous peoples, businesses, communities, landowners, individuals and non-government and government organizations.

Decision Principles In making its decision, the Government followed the five principles it established for project reviews, which were designed to restore trust in the environmental assessment process.

1. No project proponent will be asked to return to the starting line. 2. Decisions will be based on science, traditional knowledge of Indigenous peoples and other relevant evidence.

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◦ The Government considered the NEB’s report and the 157 conditions it imposed. ◦ Experts from Natural Resources Canada, Transport Canada, Fisheries and Oceans Canada, Environment and Climate Change Canada and Health Canada provided scientific and technical advice throughout the NEB’s review. ◦ Indigenous peoples brought forward traditional knowledge including observations about potential impacts on the marine environment.

3. The views of the public and affected communities will be sought and considered. ◦ Ministerial Panel held 44 public meetings. ◦ More than 35,000 questionnaire responses.

4. Indigenous peoples will be meaningfully consulted, and where appropriate, impacts on their rights and interests will be accommodated. ◦ Added four months to consultations. ◦ Provided funding for participants. ◦ Indigenous peoples will be involved in the projects through monitoring committees and economic partnerships.

5. Direct and upstream greenhouse gas emissions linked to the projects under review will be assessed. ◦ Direct GHG emissions not significant. ◦ Upstream GHG emissions must operate within the cap in Alberta’s Oil Sands Emissions Limit Act.

The outcomes of all consultation and assessment processes are available to Canadians.

Related Project Information

Ministerial Panel Report (/sites/www.nrcan.gc.ca/files/files/pdf/16-011_TMX Full Report-en_nov2-11-30am.pdf) Visit the projects engagement website to view the summary of NRCan’s public consultations on this project.

Online Questionnaire Report (/sites/www.nrcan.gc.ca/files/energy/pdf/Questionnaire-Nielsen_reportTMX_en.pdf) Read the summary of NRCan’s online consultations on this project.

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National Energy Board Report (https://docs.neb-one.gc.ca/ll- eng/llisapi.dll/2969681/National_Energy_Board_Report_-_OH-001- 2014_-_A5A9H1.pdf?func=doc.Fetch&nodeid=2969681) Read the NEB’s decision and recommendations.

Environment and Climate Change Canada Assessment (http://www.ceaa.gc.ca/050/documents/p80061/116524E.pdf) Review of Related Upstream Greenhouse Gas Emissions Estimates

Crown Consultations and Accommodation Report (/sites/www.nrcan.gc.ca/files/energy/pdf/TMX_Final_report_en.pdf) Read the summary of the Government’s consultations with Indigenous groups.

Find Out More

• Visit the Major Project Management Office summary of this project (http://mpmo.gc.ca/measures/256). • Pipelines are a safe, efficient and reliable way to move Canadian energy to consumers. Let’s look at the facts. (https://www.nrcan.gc.ca/energy/infrastructure/13751) • Have your say: contribute to the modernization of the National Energy Board, Canada’s federal energy regulator. (http://www.neb-modernization.ca/neb- welcome)

Date Modified: 2016-11-30

https://www.nrcan.gc.ca/energy/resources/19142 11/30/2016 THIS IS EXHIBIT "I4" Referred to in the Affidavit of Michael Davies

Swom before me this 26th dayof October A.D.2017

A S IN AND FOR BRITISH COLUMBIA

SHANNON DAVIDSON Barrister & Solicitor Osler, Hoskin & Harcourt LLP Suite 1700, Guinness Tower 1055 West Hasting Street Vancouver,Bc V6E2E9 Telephone: 604.692.27 54