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February 18, 2020 FILED ELECTRONICALLY Canada February 18, 2020 FILED ELECTRONICALLY Canada Energy Regulator Suite 210, 517 10 Ave SW Calgary, AB T2R 0A8 Attention: Ms. Louise George Secretary of the Commission of the Canada Energy Regulator Dear Ms. George: Re: Trans Mountain Pipeline ULC (“Trans Mountain”) Trans Mountain Expansion Project (“Project” or “TMEP”) File OF-Fac-Oil-T260-2013-03 63 Detailed Route Hearing Order MH-027-2020 Trans Mountain’s Written Evidence for STSA (Segments 5, 6 and 7) – Phase 1 Trans Mountain’s Written Evidence with respect to the Statements of Opposition and clarification letters (“Objection”) from S’ólh Téméxw Stewardship Alliance (“STSA”), filed on September 6, 2019, September 18, 2019, September 23, 2019, October 1, 2019 and October 16, 2019 is attached as follows: (i) Appendix A – Trans Mountain’s Written Evidence with respect to the Objection (included below); (ii) Appendix B – Crown Consultation and Accommodation Report (June 2019) with Ts’elxwéyeqw Tribe Management Limited (“TTML”) Appendix; (iii) Appendix C – Map Series of Lands Subject to STSA Objection (1:20,000 Scale) (iv) Appendix D – Screen Clips of TMEP Deviations from TMPL; (v) Appendix E – Map of Core Territories of SOO Signatories; (vi) Appendix F – Responses to the ICA Recommendations (May 3, 2019); (vii) Appendix G – TTML Engagement Log; and (viii) Appendix H – STSA Provincial Permitting Engagement Log. Suite 2700, 300 – 5 Avenue SW Calgary, Alberta, T2P 5J2 CANADA Page | 1 If you have any questions, please contact the undersigned. Yours truly, Original signed by Scott Stoness Vice President, Regulatory and Compliance Trans Mountain Canada Inc. Encl. cc: STSA Page | 2 Appendix A Trans Mountain’s Written Evidence 1. Introduction 1. Trans Mountain Pipeline ULC (“Trans Mountain”) has prepared this written evidence in response to the statements of opposition (“SOOs”) and clarification letters (collectively with the SOOs, the “Objection”) filed by S’ólh Téméxw Stewardship Alliance (“STSA”) on September 6, 2019, September 18, 2019, September 23, 2019, October 1, 2019 and October 16, 2019. This document is organized as follows: (i) procedural background relevant to Trans Mountain’s application for detailed route approval, the Objection and Trans Mountain’s response (Section 2); (ii) a summary of the Objection, including the affected portion of the detailed route and issues raised by STSA (Section 3); (iii) the scope of this Detailed Route Hearing MH-027-2020 (Section 4); (iv) Trans Mountain’s route selection process, including routing criteria (Section 5); (v) a description of the Trans Mountain Expansion Project (“Project” or “TMEP”) route through the lands subject to the STSA Objection, including Trans Mountain’s rationale for the route (Section 6); (vi) an overview of prior engagement with STSA and associated entities (Section 7); (vii) a discussion of mitigation measures in place to protect groundwater, in response to STSA’s concerns regarding potential impacts to aquifers as a result of the Project (Section 8); and (viii) Trans Mountain’s responses to STSA’s allegations of unfulfilled technical work (Section 9). 2. Background 2.1 Approval of the Project Corridor 2. On November 29, 2016, weighing the benefits and impacts of the TMEP, and considering Canada’s duty to consult with Indigenous peoples, the Governor in Council (“GIC”) decided to approve the Project, including the applied-for Project corridor: Order in Council (“OIC”) P.C. 2016-1069 (December 10, 2016), issued under section 54 of the National Energy Board Act. 3. The National Energy Board (“NEB” or “Board”) subsequently commenced a detailed route hearing process to consider the Plan, Profile and Book of Reference (“PPBoR”) for the Project in 2017 and 2018. Neither STSA nor any of the First Nations identified as Page | 3 signatories to the STSA Objection (“SOO Signatories”)1 filed a statement of opposition (“SOO”) in relation to the PPBoR at that time. 4. On August 30, 2018, the Federal Court of Appeal (“FCA”) in Tsleil-Waututh Nation v Canada (Attorney General) (“Tsleil-Waututh”) quashed the OIC for the Project and remitted the matter back to the GIC for prompt redetermination. 5. On September 20, 2018, the GIC issued OIC PC 2018-1177, directing the NEB to complete a reconsideration of the Project within 155 days (no later than February 22, 2019). The NEB announced the commencement of that reconsideration process (MH- 052-2018) (“Reconsideration”) on September 26, 2018 (A94153-1) and issued the corresponding Hearing Order on October 12, 2018 (A94793). 6. The Reconsideration involved 118 intervenors, including 52 Indigenous communities. The SOO Signatories participated in the Reconsideration as part of the Stó:lō Collective. 7. On February 22, 2019, the NEB released its report with respect to the Reconsideration (the “Reconsideration Report”). The Reconsideration Report found that the Project is required by the present and future public convenience and necessity, is in the public interest, and again recommended that the GIC approve the Project (A98021-1). 8. On June 18, 2019, the GIC again approved the Project (including the applied-for corridor) and directed the NEB to issue a new Certificate of Public Convenience and Necessity (“CPCN”) and CPCN Amending Orders (per OIC PC 2019-0820), which the NEB issued on June 21, 2019 (C00061). 9. On August 28, 2019, the Canadian Energy Regulator Act came into force, repealing and replacing the National Energy Board Act, and replacing the NEB with the Canada Energy Regulator (“CER”). 2.2 The Renewed and Concurrent Phase III Consultation Process 10. On October 3, 2018, concurrent with the initiation of the Reconsideration and following the FCA decision in Tsleil-Waututh, the Government of Canada (“Canada”) announced the resumption of Phase III Crown consultation processes with all Indigenous communities potentially impacted by the Project.2 11. The renewed Phase III Crown consultation process included the Stó:lō Collective, as evidenced in Canada’s Crown Consultation and Accommodation Report (“CCAR”) dated June 2019, which is Appendix B to Trans Mountain’s evidence and includes the TTML- 1 Sumas (Semath) First Nation, Tzeachten First Nation, Aitchelitz First Nation, Skowkale First Nation and Squiala First Nation (A7A9V6). 2 Government of Canada, Trans Mountain Expansion Project – Crown Consultation and Accommodation Report (June 2019) [CCAR] at PDF 12 of 236. Page | 4 specific chapter. The Stó:lō Collective was engaged and consulted in its capacity as a representative body of the SOO Signatories, among others.3 12. In addition to Crown engagement and consultation, Trans Mountain continued to engage and consult with the SOO Signatories during the renewed Phase III Crown consultation period individually and through their representative bodies, being the STSA and the Ts’elxwéyeqw Tribe Management Limited (“TTML”). 13. The renewed Phase III Crown consultation process provided opportunities to the SOO Signatories to have their concerns heard and addressed, including some of the concerns raised by STSA in its Objection. 2.3 The Detailed Routing Process 14. On July 19, 2019, the NEB issued its decision on resuming the regulatory process for the Project, requiring Trans Mountain to file a new PPBoR (C00593-1). Between July 25 and August 13, 2019, Trans Mountain filed its new PPBoR and sample notices for landowner service and publication with the NEB.4 15. On August 9 and 23, 2019, the NEB provided notification to potentially affected Indigenous communities, including the SOO Signatories, of the filing of Trans Mountain’s PPBoR.5 16. On November 29, 2019, the Commission of the CER (the “Commission”) issued SOO Decision No. 4 with respect to Segments 5, 6 and 7 of the Project route (C03323-1). Decision No. 4 found that 32 SOOs, including those filed by STSA, met the required criteria and would be granted a hearing. 17. On November 29, 2019, the Commission also issued a letter (A7A4K4) with respect to Condition 77 of the CPCN, which condition requires Trans Mountain to file a report on archaeological and cultural heritage field investigations undertaken to assess the potential impacts of Project construction and operations on the Lightning Rock site at Sumas, British Columbia. The Commission advised that it required the Condition 77 Report to be filed sufficiently in advance of the oral portion of the STSA detailed route 3 CCAR at PDF page 26 of 236. 4 Trans Mountain Pipeline ULC – PPBoR for Segment 1.1 to 1.5 (C00691) – filed July 25, 2019; Trans Mountain Pipeline ULC – PPBoR for Segment 2 (C00686) – filed July 25, 2019; Trans Mountain Pipeline ULC – PPBoR for Segment 3 (C00693) – filed July 26, 2019; Trans Mountain Pipeline UC – PPBoR for Segment 4 (C00794) – filed July 31, 2019; Trans Mountain Pipeline ULC – PPBoR for Segment 5.1 to 5.5 (C00798) – filed July 31, 2019; Trans Mountain Pipeline ULC – PPBoR for Segment 6.1 to 6.8 (C00974) – filed August 13, 2019; Trans Mountain Pipeline ULC – PPBoR for Segment 7.1 to 7.7 (C00965) – filed August 13, 2019. 5 NEB, Letter to Indigenous Peoples – Trans Mountain Expansion Project – Notice of the detailed route approval process for Segments 1 to 5 (Filings 1-3) and Segments 6-7 (Filings 1-2) (C00916, C00918, C00922, C01164 and C01167). Page | 5 hearing so that it may be considered in that proceeding. The Commission asked Trans Mountain for the date it anticipates filing the Condition 77 Report. 18. On December 9, 2019, Trans Mountain advised the Commission that it would file the Condition 77 Report by March 31, 2020 (C03531). 19. On December 16, 2019, STSA filed a letter with the Commission advising that the SOO Signatories were the STSA-represented Indigenous communities opposed to Trans Mountain’s proposed detailed route (A7A9V6). 20. On December 23, 2019, Trans Mountain requested that the Commission schedule the STSA detailed route hearing as soon as possible and proposed dates in mid-March for the completion of the hearing (C03893).
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