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Trans Mountain Expansion Crown Consultation And TRANS MOUNTAIN EXPANSION PROJECT CROWN CONSULTATION AND ACCOMMODATION REPORT JUNE 2019 TMX – CROWN CONSULTATION AND ACCOMMODATION REPORT Cat. No. M4-185/2019E-PDF ISBN 978-0-660-31263-7 Aussi disponible en français sous le titre : Projet d’agrandissement du réseau de Trans Mountain Rapport sur les consultations et les accommodements de la couronne TMX – CROWN CONSULTATION AND ACCOMMODATION REPORT i Table of Contents 1. Purpose of the Report ................................ .................................................................................... 1 1.1 Canada’s Approach to Indigenous Consultations .............................................................................. 2 1.2 Project Description ................................................................................................................................ 3 1.3 Initial NEB Regulatory Review and Environmental Assessment Process (up to 2016) ................. 3 1.4 Key Developments Since the Original Governor-in-Council Decision ............................................. 6 1.5 National Energy Board Reconsideration Process: September 2018–February 2019 .................... 7 1.6 Re-initiation of Phase III Consultations ............................................................................................... 9 2. A Renewed Approach to Consulting Indigenous Communities ................................................... 10 2.1 Key Elements of Canada’s Approach to Phase III Consultations ................................................... 10 2.2 Identification of Impacted Indigenous Communities ........................................................................ 19 2.3 Methodology for Assessing Project Impacts .................................................................................... 26 2.4 Asserted or Established Aboriginal Rights and Treaty Rights ........................................................ 37 3. Summary of Consultation Activities ............................................................................................. 42 3.1 Proponent Engagement ..................................................................................................................... 42 3.2 TERMPOL Engagement .................................................................................................................... 45 3.3 National Energy Board Engagement ................................................................................................ 47 3.4 Federal Government Consultation .................................................................................................... 51 3.5 Participant Funding ............................................................................................................................. 67 4. Consideration of Impacts on Indigenous Interests and Concerns ............................................... 75 Introduction ................................................................................................................................................ 75 4.1 Methodology for Analyzing Indigenous Interests and Concerns .................................................... 76 4.2 Impacts of the Project ......................................................................................................................... 79 4.3 General Mitigation and Accommodation Measures ...................................................................... 144 4.4 Additional Accommodation and Other Measures (Offered in 2019) ............................................ 191 4.5 Indigenous Concerns About NEB and Consultation Processes .................................................. 205 5. Conclusions ................................................................................................................................ 210 5.1 Reinitiated Phase III Consultation Process ................................................................................... 211 5.2 Summary of Impacts on Indigenous Interests ............................................................................... 215 5.3 Addressing Impacts on Indigenous Interests ................................................................................ 217 5.4 Overall Conclusion ........................................................................................................................... 219 TMX – CROWN CONSULTATION AND ACCOMMODATION REPORT ii 1. Purpose of the Report On August 30, 2018, the Federal Court of Appeal (the Court) set aside the Governor-in-Council’s (GiC) decision approving the Trans Mountain Expansion Project (the Project).1 The Court held that the National Energy Board (NEB) erred in not considering the impact of marine shipping when it assessed the Project and that the Government of Canada (Canada) failed to properly fulfil its legal duty to consult with Indigenous groups. Specifically, the Court found that while Canada had acted in good faith and selected an appropriate consultation framework for the Project, the consultations did not adequately take into account the concerns of Indigenous groups or explore possible accommodation of those concerns. In addition, Canada had been unwilling to depart from the NEB’s findings and recommendations in order to address Indigenous concerns. Finally, the Court ruled that Canada had held the erroneous view that it was unable to impose additional conditions on the proponent. Canada accepted the Court’s findings and its direction to redo its consultations. This Report outlines how Canada proceeded and what it did differently. In particular, it provides an overview of consultations with Indigenous groups, including concerns raised and the measures proposed to address them. It also presents conclusions on whether the consultations upheld the honour of the Crown. Finally, this Report builds on the first Crown Consultation and Accommodation Report (the 2016 Report),2 prepared jointly with the Province of British Columbia (B.C.) in the context of the original 1 Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153: http://www.fca-caf.gc.ca/fca- caf_eng/new_eng.html 2 2016 CCAR: https://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/energy/pdf/TMX_Final_report_en.pdf TMX – CROWN CONSULTATION AND ACCOMMODATION REPORT 1 CHAPTER 1: PURPOSE OF THE REPORT Project approval process.3 The B.C. assessment and certification for the Project were unchanged by the Court’s decision. This updated federal Report integrates information from 2016 that is relevant and applicable to the current GiC decision-making process. This ensures that the 2019 Report remains focused, serving as complementary to the 2016 Report. The new sections in this Report, which are identified in the Table of Contents and with a note at the beginning of each chapter, reflect additional information and events that took place following the original GiC decision on the Project — including Canada’s renewed approach to Phase III consultations and what Canada heard in these consultations. 1.1 CANADA’S APPROACH TO INDIGENOUS CONSULTATIONS The Crown has a constitutional duty to consult Indigenous groups and, where appropriate, accommodate their concerns when it contemplates conduct that might adversely affect asserted or established Aboriginal or Treaty Rights and title, as recognized and affirmed by Section 35 of the Constitution Act, 1982. Canada also consults with Indigenous groups for many other reasons, including statutory, contractual, policy and good governance, as well as in order to build effective relationships with Indigenous peoples and work together toward reconciliation. Given the breadth of Canada’s objectives in consulting, the term “Indigenous Interests” in this Report includes asserted or established Aboriginal or Treaty Rights and title, as well as other interests. Canada’s consultation and accommodation approach, as described in this Report, aligns with the principles of reconciliation as laid out by the Department of Justice Canada4 and follows the guidance from the Court’s decision in Tsleil-Waututh Nation v. Canada (Attorney General).5 Canada re-initiated Phase III consultations with a particular focus on rectifying the shortcomings identified by the Court, including: engaging in meaningful, two-way dialogue; understanding the nature and seriousness of potential impacts on rights; and responding to the concerns raised. Canada’s comprehensive approach to the re-initiated Phase III consultations is described in detail in Chapter 2 of this Report. 3 British Columbia’s approval of the Project was also challenged judicially, but the adequacy of its consultations with Indigenous communities was upheld by the Supreme Court of British Columbia. See Coastal First Nations v. British Columbia (Environment), 2016 BCSC 34 (CanLII). 4 See https://www.justice.gc.ca/eng/csj-sjc/principles-principes.html 5 See http://www.fca-caf.gc.ca/fca-caf_eng/new_eng.html TMX – CROWN CONSULTATION AND ACCOMMODATION REPORT 2 CHAPTER 1: PURPOSE OF THE REPORT 1.2 PROJECT DESCRIPTION On December 16, 2013, Trans Mountain Pipeline ULC (Trans Mountain or the proponent) submitted an application to the NEB for a Certificate of Public Convenience and Necessity (CPCN) and other requested relief to construct and operate the Project, which would run through Indigenous territory. The existing Trans Mountain Pipeline, which runs from Edmonton, Alberta, to Burnaby, B.C., is the only major pipeline route for Western Canadian producers to transport their oil to Canada’s West Coast. Once the oil arrives in Burnaby,
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