File OF-Fac-T260-2013-03 61 30 October 2020 Mr. Matthew Pasco Interim Chair and Title Protector Nlaka’pamux Nation Tribal Council P.O. Box 430 Lytton, BC V0K 1Z0 Email [email protected] Sent via mail Dear Mr. Pasco: Trans Mountain Pipeline ULC (Trans Mountain) Trans Mountain Expansion Project (TMEP) Variance Application – West Alternative Route On 9 October 2020, Trans Mountain submitted an application under section 190 of the Canadian Energy Regulator Act (CER Act) to vary the previously approved Trans Mountain Expansion Project Certificate (OC-065) to accommodate a proposed alternative route through the Coldwater Valley (the Variance Application). Boothroyd Indian Band, Lytton First Nation, Oregon Jack Creek Band, and Skuppah Indian Band may have Aboriginal rights or interests that could be impacted by the proposed alternate route. Our understanding is that the Nlaka’pamux Nation Tribal Council (NNTC), continues to represent the communities of Boothroyd Indian Band, Lytton First Nation, Oregon Jack Creek Band, and Skuppah Indian Band with respect to the TMEP. Should this no longer be the case, please contact Jo-Anne McDonald at the contact information below by 13 November 2020. The Variance Application Trans Mountain is proposing an alternative route (the ‘West Alternative Route’) along the west side of the Coldwater Valley in response to requests from the Coldwater Indian Band to re-route the approved TMEP corridor in a manner that avoids potential impacts to the aquifer beneath the Coldwater Indian Reserve No. 1. The Variance Application includes details of Trans Mountain’s engagement with Indigenous communities, information regarding the potential environmental and socio-economic effects of the West Alternative Route, measures to address these potential effects, as well as information regarding proposed routing, construction and timelines. …/2 -2- Attached to this letter, you will find a summary of the Variance Application, a map of the proposed alternate route, and Trans Mountain’s contact information. The full application can be viewed on our website (file reference #C08844.1). The CER’s Assessment Process The Canada Energy Regulator (CER), formerly the National Energy Board, is responsible for regulating pipelines and electrical transmission lines that cross a national, provincial, or territorial border. The CER strives to build meaningful relationships with Indigenous peoples across the country who are potentially impacted by the infrastructure we regulate. Under the CER Act, the Commission of the CER is responsible for making impartial adjudicative decisions and recommendations, and will carry out the federal assessment of the Variance Application. The Commission’s assessment will consider any adverse impacts the Variance Application may have on Aboriginal and Treaty rights, as well as effects on any other interests and concerns of Indigenous peoples. The Commission may schedule a public hearing as part of this assessment that allows for meaningful engagement with Indigenous peoples and organizations, as well as members of the public. The Commission’s process will not be an opportunity to revisit matters related to the remainder of the TMEP, which were previously decided as part of the OH-001-2014 process. However, should the application be approved, the Commission may impose new or substituted conditions relating to the West Alternative Route that the Commission finds necessary or in the public interest. For your awareness, it is anticipated that Trans Mountain will soon file the Plan, Profile and Book of Reference (PPBoR) sheets for the West Alternative Route, which could be included in the Commission’s process. PPBoR sheets are detailed drawings that show, among other details, the exact location of the pipeline on each property it will cross. Should a public hearing be scheduled, the CER encourages NNTC on behalf of its member communities to participate in the hearing to share your views regarding the West Alternative Route as well as any information regarding potential impacts to Boothroyd Band, Lytton First Nation, Oregon Jack Creek Band, and Skuppah Indian Band’s Aboriginal rights and interests with the Commission. The direct participation of Indigenous peoples in the Commission’s process allows the Commission to directly hear about and fully consider impacts on Aboriginal rights and interests. The Crown will rely on the CER process to fulfill its duty to consult and accommodate Indigenous peoples for this application. Additional information regarding participation in public hearings will be provided at a later date, should a public hearing be scheduled. Consultation with NNTC The CER is responsible for coordinating all Indigenous consultation activities in relation to the Variance Application, and for fulfilling Canada’s duty to consult and, where appropriate, 1 Or go the website at http://www.cer-rec.gc.ca/ click on “Applications & Filings” under the heading “View Regulatory Documents, enter the Document Number C08844 and click on “Go.” -3- accommodate Indigenous peoples who may be impacted by the alternate route, taking into account the existing accommodation measures for the TMEP. You may recall that Natural Resources Canada (NRCan) was previously responsible for coordinating Phase III Indigenous consultation activities in relation to Canada’s 2019 decision to approve the TMEP. The 2019 decision marked the close of Phase III consultations, and the transition to Phase IV engagement and implementation of eight accommodation measures. Notwithstanding ongoing Phase IV engagement, coordinated by NRCan, the Variance Application necessitates a new and separate consultation process, led by the CER, with potentially impacted Indigenous peoples. Going forward, the CER and NRCan will work collaboratively to ensure that any consultation activities in relation to the Variance Application build on previous meaningful, two-way dialogue regarding the TMEP, and avoid duplication. To that end, NRCan plans to share its existing Crown consultation record in relation to the TMEP with the CER. If you have any questions or concerns regarding this information being shared, please contact Jo-Anne McDonald at the contact information below by 13 November 2020. In addition to consultation opportunities provided through the CER’s assessment process, CER consultation staff are available to meet bilaterally with NNTC to discuss any questions or concerns you may have regarding the West Alternative Route, including its potential impacts on your rights and interests. In light of health and safety concerns in relation to COVID-19, the CER anticipates any meetings will necessarily take place by phone or videoconference. Provincial Amendment Trans Mountain has also applied to British Columbia’s (BC) Environmental Assessment Office (EAO) to amend the TMEP Environmental Assessment Certificate #E17-01 to include the West Alternative Route. The EAO will be undertaking an assessment of this application under section 32 of BC’s Environmental Assessment Act. The EAO will be providing more information on the provincial amendment process in the near future. The CER and EAO will be seeking to coordinate their assessment processes to the extent possible, including Indigenous consultation. For additional information regarding the provincial amendment assessment, please contact Meaghan Hoyle at the EAO at 778-974-3361 or [email protected]. Participant Funding Participant funding will be available for Crown consultation meetings with the CER and participation in the hearing. If you are interested in funding, please contact the Participant Funding Program by email at [email protected] or call 1-800-899-1265 (toll-free). We are in the process of updating the information on the CER website at www.cer-rec.gc.ca/pfp. Concluding Remarks The CER is committed to building meaningful relationships with Indigenous peoples, and to ensuring that potential impacts to Indigenous rights and interests are mitigated or accommodated, to the extent possible. Jo-Anne McDonald, Crown Consultation Project -4- Lead, will contact you in the coming days to discuss any questions or concerns you might have, or to schedule a virtual meeting. Alternatively, you may contact Jo-Anne McDonald at 403-292-4800 or 1-800-899-1265 or by email at [email protected]. Yours sincerely, Original signed by Marc Boucher Kimberly Lavoie Director of Public Participation Executive Director, TMX Phase IV Canada Energy Regulator Partnerships Office Natural Resources Canada Attachment – Project Summary and Map c.c. Mr. Scott Stoness, [email protected] [email protected] Ms. Meaghan Hoyle, BC EAO, [email protected] Mr. Edwin Hubert, BC EAO, [email protected] Ms. Nadine Hoehne, Implementation Manager, NNTC, [email protected] Chief Mike Campbell, Boothroyd Band, [email protected] Chief Janet Webster, Lytton First Nation, [email protected] Mr. Steve Wilson, Band Administrator, Lytton First Nation, [email protected] Grand Chief Robert Pasco, Oregon Jack Creek Band, [email protected] Chief Doug McIntyre, Skuppah Indian Band, [email protected] Attachment to CER Letter dated 30 October 2020 Page 1 of 2 Trans Mountain Expansion Project (TMEP) Variance Application – West Alternative Route Project Summary Trans Mountain Pipeline ULC (Trans Mountain) has filed an application to vary the alignment of the TMEP in the Coldwater Valley (Variance Application) in response to requests from the Coldwater Indian Band (“Coldwater”) to re-route the approved TMEP corridor