Tsleil-Waututh Nation v. Canada

Date: 20180830

Dockets: A-78-17 (lead file); A-217-16; A-218-16;

A-223-16; A-224-16; A-225-16; A-232-16;

A-68-17; A-74-17; A-75-17;

A-76-17; A-77-17; A-84-17; A-86-17

Citation: 2018 FCA 153

CORAM:

DAWSON J.A.

DE MONTIGNY J.A.

WOODS J.A.

BETWEEN:

TSLEIL-WAUTUTH NATION, CITY OF VANCOUVER, CITY OF

BURNABY, THE SQUAMISH NATION (also known as the

SQUAMISH INDIAN BAND), XÀLEK/SEKYÚ SIÝAM, CHIEF IAN

CAMPBELL on his own behalf and on behalf of all members of the

Squamish Nation, COLDWATER INDIAN BAND, CHIEF LEE

SPAHAN in his capacity as Chief of the Coldwater Band on behalf of

all members of the Coldwater Band, AITCHELITZ, SKOWKALE,

SHXWHÁ:Y VILLAGE, SOOWAHLIE, SQUIALA FIRST NATION,

TZEACHTEN, YAKWEAKWIOOSE, SKWAH, CHIEF DAVID

JIMMIE on his own behalf and on behalf of all members of the

TS’ELXWÉYEQW TRIBE, UPPER NICOLA BAND, CHIEF RON

IGNACE and CHIEF FRED SEYMOUR on their own behalf and on

behalf of all other members of the STK’EMLUPSEMC TE

SECWEPEMC of the SECWEPEMC NATION, RAINCOAST

CONSERVATION FOUNDATION and LIVING OCEANS SOCIETY

Applicants

and

ATTORNEY GENERAL OF CANADA,

NATIONAL ENERGY BOARD and

TRANS MOUNTAIN PIPELINE ULC

Respondents

and

ATTORNEY GENERAL OF ALBERTA and

ATTORNEY GENERAL OF BRITISH

COLUMBIA

Interveners

Heard at Vancouver, British Columbia, on October 2-5, 10, 12-13, 2017.

Judgment delivered at Ottawa, Ontario, on August 30, 2018.

REASONS FOR JUDGMENT BY:

CONCURRED IN BY:

DAWSON J.A.

DE MONTIGNY J.A.

WOODS J.A.

Date: 20180830

Dockets: A-78-17 (lead file); A-217-16; A-218-16;

A-223-16; A-224-16; A-225-16; A-232-16;

A-68-17; A-74-17; A-75-17;

A-76-17; A-77-17; A-84-17; A-86-17

Citation: 2018 FCA 153

CORAM:

DAWSON J.A.

DE MONTIGNY J.A.

WOODS J.A.

BETWEEN:

TSLEIL-WAUTUTH NATION, CITY OF VANCOUVER, CITY OF

BURNABY, THE SQUAMISH NATION (also known as the

SQUAMISH INDIAN BAND), XÀLEK/SEKYÚ SIÝAM, CHIEF IAN

CAMPBELL on his own behalf and on behalf of all members of the

Squamish Nation, COLDWATER INDIAN BAND, CHIEF LEE

SPAHAN in his capacity as Chief of the Coldwater Band on behalf of

all members of the Coldwater Band, AITCHELITZ, SKOWKALE,

SHXWHÁ:Y VILLAGE, SOOWAHLIE, SQUIALA FIRST NATION,

TZEACHTEN, YAKWEAKWIOOSE, SKWAH, CHIEF DAVID

JIMMIE on his own behalf and on behalf of all members of the

TS’ELXWÉYEQW TRIBE, UPPER NICOLA BAND, CHIEF RON

IGNACE and CHIEF FRED SEYMOUR on their own behalf and on

behalf of all other members of the STK’EMLUPSEMC TE

SECWEPEMC of the SECWEPEMC NATION, RAINCOAST

CONSERVATION FOUNDATION and LIVING OCEANS SOCIETY

Applicants

and

ATTORNEY GENERAL OF CANADA,

NATIONAL ENERGY BOARD and

TRANS MOUNTAIN PIPELINE ULC

Respondents

Page: 2

and

ATTORNEY GENERAL OF ALBERTA and

ATTORNEY GENERAL OF BRITISH

COLUMBIA

Interveners

REASONS FOR JUDGMENT

DAWSON J.A.

Blank/En blanc

Para.

I.

Introduction

A. Summary of Conclusions

1

4

II.

The Project

9

III.

The Applicants

15

16

21

23

25

30

35

41

45

49

50

A.

B.

C.

D.

E.

F.

Tsleil-Waututh Nation

City of Vancouver

City of Burnaby

The Squamish Nation

Coldwater Indian Band

The Stó:lō Collective

G.

H.

I.

Upper Nicola Band

Stk’emlupsemc te Secwepemc of the Secwepemc Nation

Raincoast Conservation Foundation and Living Oceans Society

IV.

V.

The applications challenging the report of the National Energy Board and the Order

in Council

The legislative regime

53

54

59

63

68

69

72

76

81

85

88

94

99

102

A.

B.

C.

The requirements of the National Energy Board Act

The requirements of the Canadian Environmental Assessment Act, 2012

Consideration by the Governor in Council

VI.

The report of the National Energy Board

VII. The decision of the Governor in Council

VIII. Factual background

A.

B.

C.

D.

E.

F.

Canada’s consultation process

Prehearing matters and the Project application

The scoping decision and the hearing order

Challenges to the hearing order and the scoping decision

The TERMPOL review process

The applicants’ participation in the hearing before the Board

Participant funding

G.

1.

Tsleil-Waututh Nation

Page: 3

Para.

Blank/En blanc

The Squamish Nation

2.

3.

4.

5.

6.

7.

103

Coldwater Indian Band

The Stó:lō Collective

Upper Nicola Band

SSN

104

105

106

107

Raincoast Conservation Foundation and Living Oceans Society

108

H.

I.

Crown consultation efforts—a brief summary

109

110

115

1.

2.

3.

Phase I (from 2013 to April 2014)

Phase II (from April 2014 to February 2016)

Phase III (February to November 2016)

Post National Energy Board report events

118

1.

2.

3.

The Interim Measures for Pipeline Reviews

The Ministerial Panel

Greenhouse gas assessment

118

121

124

IX.

X.

The issues to be determined

Consideration of the issues

125

129

A.

The preliminary issues

129

133

1.

2.

Trans Mountain’s motion to strike

The applicants’ motion asking that the two affidavits of Robert Love, 143

or portions thereof, be struck or given no weight

(a)

(b)

The hearsay objection

Relevance of evidence of Trans Mountain’s engagement with 153

144

the Indigenous applicants

3.

Canada’s compendium—The Consultation Chronologies

163

170

173

175

B.

Is the report of the National Energy Board amenable to judicial review?

1.

2.

The decision of this Court in Gitxaala

Was Gitxaala wrongly decided on this point?

(a)

Did the Court err by stating that only “decisions about legal

or practical interests” are judicially reviewable?

Forestethics Advocacy v. Canada (Attorney General)

The jurisprudence which reviewed environmental assessment

reports

(b)

(c)

183

185

(d)

(e)

(f)

The reference to inapplicable provisions of the Canadian

Environmental Assessment Act, 2012

Gitxaala thwarts review of the decision of the National

Energy Board

Conclusion on whether the report of the National Energy

Board is amenable to judicial review

187

200

202

204

C.

Should the decision of the Governor in Council be set aside on

administrative law grounds?

1.

The standard of review to be applied to the decision of the Governor

in Council

(a)

(b)

The administrative law components of the decision

The constitutional component

206

224

228

2.

Did the Governor in Council err in determining that the Board’s

Page: 4

Blank/En blanc

Para.

report qualified as a report so as to be a proper condition precedent to

the Governor in Council’s decision?

(a)

Was the Board’s process procedurally fair?

230

237

242

(i)

Applicable legal principles

(ii)

The asserted breaches of procedural fairness

(iii) The failure to hold a full oral hearing and to allow

cross-examination of Trans Mountain’s witnesses

(iv)

(v)

Trans Mountain’s responses to the Information

Requests

The asserted deferral and delegation of the assessment 278

of important information

260

(vi)

Failing to provide adequate reasons

292

316

321

322

(vii) Trans Mountain’s reply evidence

(viii) Conclusion on procedural fairness

Did the Board fail to decide certain issues before

recommending approval of the Project?

(b)

(i)

Did the Board fail to assess the risks and impacts

posed by the Project to Burnaby?

Did the Board fail to consider alternative means of

carrying out the Project?

335

352

375

387

388

(ii)

(iii) Did the Board fail to look at the West Alternative as

an alternative route for the new pipeline?

Did the Board fail to consider alternatives to the Westridge

Marine Terminal?

Did the Board err by failing to assess Project-related marine

shipping under the Canadian Environmental Assessment Act,

2012?

(c)

(d)

(i)

The deficiencies said to arise from the Board’s

assessment of Project-related marine shipping under

the National Energy Board Act

411

(ii)

The Board’s consideration of Project-related marine

shipping and its findings

413

431

(iii) Was the Board’s assessment of Project-related marine

shipping substantially adequate?

(e)

Did the Board err in its treatment of the Species at Risk Act?

442

446

(i)

Did the Board err by concluding that section 79 of the

Species at Risk Act did not apply to its consideration

of the effects of Project-related marine shipping?

Did the Board substantially comply with its

obligations under section 79 of the Species at Risk

Act?

(ii)

451

(iii) Was the Governor in Council obliged to comply with

subsection 77(1) of the Species at Risk Act?

Conclusion: the Governor in Council erred by relying upon

the Board’s report as a proper condition precedent to the

459

465

(f)

Page: 5

Para.

Blank/En blanc

Governor in Council’s decision

3.

The challenge of the Attorney General of British Columbia

474

477

(a)

Did the Governor in Council fail to comply with the

obligation to give reasons?

(b)

Did the Governor in Council fail to consider the impact of

Project-related shipping spill risks on the Province of British

Columbia?

481

485

D.

Should the decision of the Governor in Council be set aside on the ground

that Canada failed to consult adequately with the Indigenous applicants?

1.

2.

3.

The applicable legal principles

The standard to which Canada is to be held in fulfilling the duty

Application of the legal principles to the evidence

485

508

511

513

(a)

Was the consultation process deficient because of the design

of the process selected and followed by Canada?

(i)

(ii)

The consultation framework was unilaterally imposed

The Board’s process is said to be inadequate for

fulfilling consultation obligations

515

520

(iii) The funding provided is said to have been inadequate

533

542

(iv)

The process allowed the Project to be approved when

essential information was lacking

(v)

Conclusion on the adequacy of the process selected

and followed by Canada

548

550

(b)

Was the consultation process deficient because of Canada’s

execution of the process?

(i)

(ii)

The need for meaningful two-way dialogue

The implementation of the mandate of the Crown

consultation team

564

575

a.

b.

c.

d.

e.

f.

The Crown Consultation Report

The experience of Tsleil-Waututh

The experience of Squamish

The experience of Coldwater

The experience of Stó:lō

The experience of Upper Nicola

The experience of SSN

Conclusion on the mandate of the Crown

consultation team

578

579

582

585

589

593

596

598

g.

h.

(iii) Canada’s reluctance to depart from the Board’s

findings and recommended conditions and genuinely

engage the concerns of the Indigenous applicants

602

629

638

(iv)

Canada’s erroneous view that the Governor in

Council could not impose additional conditions on the

proponent

(v)

Canada’s late disclosure of its assessment of the

Project’s impact on the Indigenous applicants

Page: 6

Para.

Blank/En blanc

(vi)

Canada’s failure to dialogue meaningfully

649

662

669

681

728

737

a.

b.

c.

d.

e.

f.

The experience of Tsleil-Waututh

The experience of Squamish

The experience of Coldwater

The experience of Stó:lō

The experience of Upper Nicola

The experience of SSN

(vii) Conclusion on Canada’s execution of the consultation 753

process

E.

F.

Remedy

Proposed Disposition

764

773

I.

Introduction

[1]

On May 19, 2016, the National Energy Board issued its report concerning the proposed

expansion of the Trans Mountain pipeline system. The Board’s report recommended that the

Governor in Council approve the expansion. The Board’s recommendation was based on the

Board’s findings that the expansion is in Canada’s public interest, and that if certain

environmental protection procedures and mitigation measures are implemented, and if the

conditions the Board recommended are implemented, the expansion is not likely to cause

significant adverse environmental effects.

[2]

On November 29, 2016, the Governor in Council accepted the Board’s recommendation

and issued Order in Council P.C. 2016-1069. The Order in Council recited the Governor in

Council’s acceptance of the Board’s recommendation, and directed the Board to issue a

certificate of public convenience and necessity approving the construction and operation of the

expansion project, subject to the conditions recommended by the Board.

Page: 7

A number of applications for judicial review of the Board’s report and the Order in

[3]

Council were filed in this Court. These applications were consolidated. These are the Court’s

reasons for judgment in respect of the consolidated proceeding. Pursuant to the order

consolidating the applications, a copy of these reasons shall be placed in each file.

A.

Summary of Conclusions

[4]

While a number of applicants challenge the report of the National Energy Board, as

explained below, the Order in Council is legally the only decision under review. Its validity is

challenged on two principal grounds: first, the Board’s process and findings were so flawed that

the Governor in Council could not reasonably rely on the Board’s report; second, Canada failed

to fulfil the duty to consult owed to Indigenous peoples.

[5]

Applying largely uncontested legal principles established by the Supreme Court of

Canada to the factual record, a factual record that is also largely not contested, I conclude that

most of the flaws asserted against the Board’s process and findings are without merit. However,

the Board made one critical error. The Board unjustifiably defined the scope of the Project under

review not to include Project-related tanker traffic. The unjustified exclusion of marine shipping

from the scope of the Project led to successive, unacceptable deficiencies in the Board’s report

and recommendations. As a result, the Governor in Council could not rely on the Board’s report

and recommendations when assessing the Project’s environmental effects and the overall public

interest.

Page: 8

[6]

Applying the largely uncontested legal principles that underpin the duty to consult

Indigenous peoples and First Nations set out by the Supreme Court, I also conclude that Canada

acted in good faith and selected an appropriate consultation framework. However, at the last

stage of the consultation process prior to the decision of the Governor in Council, a stage called

Phase III, Canada’s efforts fell well short of the mark set by the Supreme Court of Canada.

Canada failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns

of the Indigenous applicants so as to explore possible accommodation of those concerns. The

duty to consult was not adequately discharged.

[7]

Accordingly, for the following reasons, I would quash the Order in Council and remit the

matter back to the Governor in Council for appropriate action, if it sees fit, to address these flaws

and, later, proper redetermination.

[8]

These reasons begin by describing: (i) the expansion project; (ii) the applicants who

challenge the Board’s report and the Order in Council; (iii) the pending applications for judicial

review; (iv) the legislative regime; (v) the report of the Board; and, (vi) the decision of the

Governor in Council. The reasons then set out the factual background relevant to the challenges

before the Court before turning to the issues raised in these applications and the consideration of

those issues.

II.

The Project

[9]

No company may operate an interprovincial or international pipeline in Canada unless the

National Energy Board has issued a certificate of public convenience and necessity, and given

Page: 9

leave to the company to open the pipeline (subsection 30(1) of the National Energy Board Act,

R.S.C. 1985, c. N-7).

[10] Trans Mountain Pipeline ULC is the general partner of Trans Mountain Pipeline L.P.

(together referred to as Trans Mountain). Trans Mountain owns and holds operating certificates

issued by the National Energy Board for the existing Trans Mountain pipeline system. This

system includes a pipeline approximately 1,147 kilometres long that moves crude oil, and refined

and semi-refined petroleum products from Edmonton, Alberta to marketing terminals and

refineries in the central region and lower mainland area of British Columbia, as well as to the

Puget Sound area in Washington State.

[11] On December 16, 2013, Trans Mountain submitted an application to the National Energy

Board for a certificate of public convenience and necessity (and certain amended certificates) for

the Trans Mountain Expansion Project (Project).

[12] The application described the Project to consist of a number of components, including: (i)

twinning the existing pipeline system with approximately 987 kilometres of new pipeline

segments, including new proposed pipeline corridors and rights-of-way, for the purpose of

transporting diluted bitumen from Edmonton, Alberta to Burnaby, British Columbia; (ii) new and

modified facilities, including pump stations and tanks (in particular, an expanded petroleum tank

farm in Burnaby which would be expanded from 13 to 26 storage tanks); (iii) a new and

expanded dock facility, including three new berths, at the Westridge Marine Terminal in

Page: 10

Burnaby; and, (iv) two new pipelines running from the Burnaby storage facility to the Westridge

Marine Terminal.

[13] The Project would increase the number of tankers loaded at the Westridge Marine

Terminal from approximately five Panamax and Aframax class tankers per month to

approximately 34 Aframax class tankers per month. Aframax tankers are larger and carry more

product than Panamax tankers. The Project would increase the overall capacity of Trans

Mountain’s existing pipeline system from 300,000 barrels per day to 890,000 barrels per day.

[14] Trans Mountain’s application stated that the primary purpose of the Project is to provide

additional capacity to transport crude oil from Alberta to markets in the Pacific Rim, including

Asia. If built, the system would continue to transport crude oil—primarily diluted bitumen.

III.

The Applicants

[15] A number of First Nations and two large cities are significantly concerned about the

Project and its impact upon them, and challenge its approval. Two non-governmental agencies

also challenge the Project. These applicants are described below.

A.

Tsleil-Waututh Nation

[16] The applicant Tsleil-Waututh Nation is a Coast Salish Nation. It is a band within the

meaning of the Indian Act, R.S.C. 1985, c. I-5 and its members are Aboriginal peoples within the

Page: 11

meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian

Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52.

[17] In the traditional dialect of Halkomelem, the name Tsleil-Waututh means “People of the

Inlet”. Tsleil-Waututh’s asserted traditional territory extends approximately from the vicinity of

Mount Garibaldi to the north to the 49th parallel and beyond to the south. The traditional

territory extends west to Gibsons and east to Coquitlam Lake. The traditional territory includes

areas across British Columbia’s Lower Mainland, including sections of the Lower Fraser River,

Howe Sound, Burrard Inlet and Indian Arm.

[18] Tsleil-Waututh’s traditional territory encompasses the proposed Westridge Marine

Terminal and fuel storage facility expansion, and approximately 18 kilometres of pipeline right-

of-way. Approximately 45 kilometres of marine shipping route will pass within Tsleil-Waututh’s

asserted traditional territory.

[19] Much of Tsleil-Waututh’s population of 500 people live in its primary community of

Tsleil-Waututh, which is located on the north shore of Burrard Inlet, approximately 3 kilometres

across the Inlet from the Westridge Marine Terminal.

[20] Tsleil-Waututh asserts Aboriginal title to the land, water, air, marine foreshore and

resources in Eastern Burrard Inlet. It also asserts freestanding stewardship, harvesting and

cultural rights in this area. The Crown states that it assessed its duty to consult with Tsleil-

Waututh on the deeper end of the consultation spectrum.

Page: 12

B.

City of Vancouver

[21] The City of Vancouver is the third most densely populated city in North America, after

New York City and San Francisco. It has 69.8 kilometres of waterfront along Burrard Inlet,

English Bay, False Creek and the Fraser River, with 18 kilometres of beaches and a 22-kilometre

long seawall.

[22] Approximately 25,000 residents of Vancouver live within 300 metres of the Burrard Inlet

and English Bay shorelines.

C.

City of Burnaby

[23] The City of Burnaby is the third largest city in British Columbia, with a population of

over 223,000 people.

[24] A number of elements of the Project infrastructure will be located in Burnaby: (i) the new

Westridge Marine Terminal; (ii) the Burnaby Terminal, including thirteen new storage tanks and

one replacement storage tank; (iii) two new delivery lines following a new route connecting the

Burnaby Terminal to the Westridge Marine Terminal through a new tunnel to be drilled under

the Burnaby Mountain Conservation Area; and, (iv) a portion of the main pipeline along a new

route to the Burnaby Terminal.

Page: 13

D.

The Squamish Nation

[25] The applicant Squamish Nation is a Coast Salish Nation. It is a band within the meaning

of the Indian Act and its members are Aboriginal peoples within the meaning of section 35 of the

Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental Assessment Act,

2012. There are currently just over 4,000 registered members of the Squamish Nation.

[26] The Squamish assert that since a time before contact with Europeans, Squamish have

used and occupied lands and waters on the southwest coast of what is now British Columbia,

extending from the Lower Mainland north to Whistler. This territory includes Burrard Inlet,

English Bay, Howe Sound and the Squamish Valley. The boundaries of asserted Squamish

territory thus encompass all of Burrard Inlet, English Bay and Howe Sound, as well as the rivers

and creeks that flow into these bodies of water.

[27] Squamish has three reserves located in and at the entrance to Burrard Inlet:

i.

Seymour Creek Reserve No. 2 (ch’ích’elxwi7kw) on the North shore close to the

Westridge Marine Terminal;

ii.

Mission Reserve No. 1 (eslhá7an); and,

iii.

Capilano Reserve No. 5 (xwmelchstn).

Also located in the area are Kitsilano Reserve No. 6 (senákw) near the entrance to False Creek,

and three other waterfront reserves in Howe Sound.

Page: 14

[28] Project infrastructure, including portions of the main pipeline, the Westridge Marine

Terminal, the Burnaby Terminal, two new delivery lines connecting the terminals, and sections

of the tanker routes for the Project will be located in Squamish’s asserted traditional territory and

close to its reserves across the Burrard Inlet. The shipping route for the Project will also travel

past three Squamish reserves through to the Salish Sea.

[29] Squamish asserts Aboriginal rights, including title and self-government, within its

traditional territory. Squamish also asserts Aboriginal rights to fish in the Fraser River and its

tributaries. The Crown assessed its duty to consult Squamish at the deeper end of the

consultation spectrum.

E.

Coldwater Indian Band

[30] The applicant Coldwater is a band within the meaning of section 2 of the Indian Act. Its

members are Aboriginal peoples within the meaning of section 35 of the Constitution Act, 1982

and paragraph 5(1)(c) of the Canadian Environmental Assessment Act, 2012. Coldwater, together

with 14 other bands, comprise the Nlaka’pamux Nation.

[31] The Nlaka’pamux Nation’s asserted traditional territory encompasses part of south-

central British Columbia extending from the northern United States to north of Kamloops. This

territory includes the Lower Thompson River area, the Fraser Canyon, the Nicola and Coldwater

Valleys and the Coquihalla area.

Page: 15

[32] Coldwater’s registered population is approximately 850 members. Approximately 330

members live on Coldwater’s reserve lands. Coldwater holds three reserves: (i) Coldwater Indian

Reserve No. 1 (Coldwater Reserve) approximately 10 kilometres southwest of Merritt, British

Columbia; (ii) Paul’s Basin Indian Reserve No. 2 located to the southwest of the Coldwater

Reserve, upstream on the Coldwater River; and, (iii) Gwen Lake Indian Reserve No. 3 located on

Gwen Lake.

[33] Approximately 226 kilometres of the proposed pipeline right-of-way and four pipeline

facilities (the Kamloops Terminal, the Stump Station, the Kingsvale Station and the Hope

Station) will be located within the Nlaka’pamux Nation’s asserted traditional territory. The

Kingsvale Station is located in the Coldwater Valley. The approved pipeline right-of-way skirts

the eastern edges of the Coldwater Reserve. The existing Trans Mountain pipeline system

transects both the Coldwater Reserve and the Coldwater Valley.

[34] Coldwater asserts Aboriginal rights and title in, and the ongoing use of, the Coldwater

and Nicola Valleys and the Nlaka’pamux territory more generally. The Crown assessed its duty

to consult Coldwater at the deeper end of the consultation spectrum.

F.

The Stó:lō Collective

[35] One translation of the term “Stó:lō” is “People of the River”, referencing the Fraser

River. The Stó:lō are a Halkomelem-speaking Coast Salish people. Traditionally, they have been

tribally organized.

Page: 16

[36] The “Stó:lō Collective” was formed for the sole purpose of coordinating and representing

the interests of its membership before the National Energy Board and in Crown consultations

about the Project. The Stó:lō Collective represents the following applicants:

(a)

Aitchelitz, Skowkale, Tzeachten, Squiala First Nation, Yakweakwioose, Shxwa:y

Village and Soowahlie, each of which are villages and also bands within the

meaning of section 2 of the Indian Act (the Ts’elxweyeqw Villages). The

Ts’elxweyeqw Villages collectively comprise the Ts’elxweyeqw Tribe. Members

of the Ts’elxweyeqw Villages are Stó:lō people and Aboriginal peoples within the

meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the

Canadian Environmental Assessment Act, 2012; and,

(b)

Skwah and Kwaw-Kwaw-Apilt, each of whom are villages and also bands within

the meaning of section 2 of the Indian Act (the Pil’Alt Villages). The Pil’Alt

Villages are members of the Pil’Alt Tribe. Members of the Pil’Alt Villages are

Stó:lō people and Aboriginal peoples within the meaning of section 35 of the

Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental

Assessment Act, 2012. The Pil’Alt Villages are represented by the Ts’elxweyeqw

Tribe in matters relating to the Project. (On March 6, 2018, Kwaw-Kwaw-Apilt

filed a notice of discontinuance.)

[37] The Stó:lō’s asserted traditional territory, known as S’olh Temexw, includes the lower

Fraser River watershed.

[38] The Stó:lō live in many villages, all of which are located in the lower Fraser River

watershed.

[39] The existing Trans Mountain pipeline crosses, and the Project’s proposed new pipeline

route would cross, approximately 170 kilometres of the Stó:lō Collective applicants’ asserted

Page: 17

traditional territory, beginning from an eastern point of entry near the Coquihalla Highway and

continuing to the Burrard Inlet.

[40] The Stó:lō possess established Aboriginal fishing rights on the Fraser River (R. v. Van

der Peet, [1996] 2 S.C.R. 507, 137 D.L.R. (4th) 289). The Crown assessed its duty to consult

Stó:lō at the deeper end of the consultation spectrum.

G.

Upper Nicola Band

[41] The applicant Upper Nicola is a member community of the Syilx (Okanagan) Nation and

a band within the meaning of section 2 of the Indian Act. Upper Nicola and Syilx are an

Aboriginal people within the meaning of section 35 of the Constitution Act, 1982 and paragraph

5(1)(c) of the Canadian Environmental Assessment Act, 2012.

[42] The Syilx Nation’s asserted traditional territory extends from the north past Revelstoke

around Kinbasket to the south to the vicinity of Wilbur, Washington. It extends from the east

near Kootenay Lake to the west to the Nicola Valley. Upper Nicola currently has eight Indian

Reserves within Upper Nicola’s/Syilx’s asserted territory. The primary residential communities

are Spaxomin, located on Upper Nicola Indian Reserve No. 3 on the western shore of Douglas

Lake, and Quilchena, located on Upper Nicola Indian Reserve No. 1 on the eastern shore of

Nicola Lake.

Page: 18

[43] Approximately 130 kilometres of the Project’s proposed new pipeline will cross through

Upper Nicola’s area of responsibility within Syilx territory. The Stump Station and the Kingsvale

Station are also located within Syilx/Upper Nicola’s asserted territory.

[44] Upper Nicola asserts responsibility to protect and preserve the claimed Aboriginal title

and harvesting and other rights held collectively by the Syilx, particularly within its area of

responsibility in the asserted Syilx territory. The Crown assessed its duty to consult Upper

Nicola at the deeper end of the consultation spectrum.

H.

Stk’emlupsemc te Secwepemc of the Secwepemc Nation

[45] The Secwepemc are an Aboriginal people living in the area around the confluence of the

Fraser and Thompson Rivers. The Secwepemc Nation is comprised of seven large territorial

groupings referred to as “Divisions”. The Stk’emlupsemc te Secwepemc Division (SSN) is

comprised of the Skeetchestn Indian Band and the Kamloops (or Tk’emlups) Indian Band. Both

are bands within the meaning of section 2 of the Indian Act. SSN’s members are also Aboriginal

peoples within the meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of

the Canadian Environmental Assessment Act, 2012.

[46] The Skeetchestn Indian Band is located along the northern bank of the Thompson River,

approximately 50 kilometres west of Kamloops and has four reserves. Its total registered

population is 533. The Tk’emlups Indian Band is located in the Kamloops area and has six

reserves. Its total registered population is 1,322. Secwepemc Territory is asserted to be a

Page: 19

substantial landmass which encompasses many areas, including the area in the vicinity of

Kamloops Lake.

[47] The existing and proposed pipeline right-of-way crosses through SSN’s asserted

traditional territory for approximately 350 kilometres. Approximately 80 kilometres of the

proposed pipeline right-of-way and two pipeline facilities, the Black Pines Station and the

Kamloops Terminal, will be located within SSN’s asserted traditional territory.

[48] The SSN claim Aboriginal title over its traditional territory. The Crown assessed its duty

to consult SSN at the deeper end of the consultation spectrum.

I.

Raincoast Conservation Foundation and Living Oceans Society

[49] These applicants are not-for-profit organizations. Their involvement in the National

Energy Board review process focused primarily on the effects of Project-related marine shipping.

IV.

The applications challenging the report of the National Energy Board and the Order in

Council

[50] As will be discussed in more detail below, two matters are challenged in this consolidated

proceeding: first, the report of the National Energy Board which recommended that the Governor

in Council approve the Project and direct the Board to issue the necessary certificate of public

convenience and necessity; and, second, the decision of the Governor in Council to accept the

recommendation of the Board and issue the Order in Council directing the Board to issue the

certificate.

Page: 20

[51] The following applicants applied for judicial review of the report of the National Energy

Board:



Tsleil-Waututh Nation (Court File A-232-16)

City of Vancouver (Court File A-225-16)

City of Burnaby (Court File A-224-16)

The Squamish Nation and Xálek/Sekyú Siý am, Chief Ian Campbell on his own

behalf and on behalf of all members of Squamish (Court File A-217-16)

Coldwater Indian Band and Chief Lee Spahan in his capacity as Chief of

Coldwater on behalf of all members of Coldwater (Court File A-223-16)

Raincoast Conservation Foundation and Living Oceans Society (Court File A-

218-16).



[52] The following applicants applied, with leave, for judicial review of the decision of the

Governor in Council:



Tsleil-Waututh Nation (Court File A-78-17)

City of Burnaby (Court File A-75-17)

The Squamish Nation and Xálek/Sekyú Siý am, Chief Ian Campbell on his own

behalf and on behalf of all members of Squamish (Court File A-77-17)

Coldwater Indian Band and Chief Lee Spahan in his capacity as Chief of

Coldwater on behalf of all members of Coldwater (Court File A-76-17)

The Stó:lō Collective applicants (Court File A-86-17)

Upper Nicola Band (Court File A-74-17)



Chief Ron Ignace and Chief Fred Seymour, on their own behalf and on behalf of

all other members of Stk’emlupsemc te Secwepemc of the Secwepemc Nation

(Court File A-68-17)



Raincoast Conservation Foundation and Living Oceans Society (Court File A-84-

17).

Page: 21

V.

The legislative regime

[53] For ease of reference the legislative provisions referred to in this section of the reasons

are set out in the Appendix to these reasons.

A.

The requirements of the National Energy Board Act

[54] As explained above, no company may operate an interprovincial or international pipeline

in Canada unless the National Energy Board has issued a certificate of public convenience and

necessity, and, after the pipeline is built, has given leave to the company to open the pipeline.

[55] Trans Mountain’s completed application for a certificate of public convenience and

necessity for the Project triggered the National Energy Board’s obligation to assess the Project

pursuant to section 52 of the National Energy Board Act. Subsection 52(1) of that Act requires

the Board to prepare and submit to the Minister of Natural Resources, for transmission to the

Governor in Council, a report which sets out the Board’s recommendation as to whether the

certificate should be granted, together with all of the terms and conditions that the Board

considers the certificate should be subject to if issued. The Board is to provide its reasons for its

recommendation. When considering whether to recommend issuance of a certificate the Board is

required to take into account “whether the pipeline is and will be required by the present and

future public convenience and necessity”.

[56] The Board’s recommendation is, pursuant to subsection 52(2) of the National Energy

Board Act, to be based on “all considerations that appear to it to be directly related to the

Page: 22

pipeline and to be relevant” and the Board may have regard to five specifically enumerated

factors which include “any public interest that in the Board’s opinion may be affected by the

issuance of the certificate or the dismissal of the application.”

[57] If an application relates to a “designated” project, as defined in section 2 of the Canadian

Environmental Assessment Act, 2012, the Board’s report must also set out the Board’s

environmental assessment of the project. This assessment is to be prepared under the Canadian

Environmental Assessment Act, 2012 (subsection 52(3) of the National Energy Board Act). A

designated project is defined in section 2 of the Canadian Environmental Assessment Act, 2012:

designated project means one or more projet désigné Une ou plusieurs

physical activities that

activités concrètes :

(a) are carried out in Canada or on

a) exercées au Canada ou sur un

federal lands;

territoire domanial;

(b) are designated by regulations made b) désignées soit par règlement pris en

under paragraph 84(a) or designated in vertu de l’alinéa 84a), soit par arrêté

an order made by the Minister under

subsection 14(2); and

pris par le ministre en vertu du

paragraphe 14(2);

(c) are linked to the same federal

authority as specified in those

regulations or that order.

c) liées à la même autorité fédérale

selon ce qui est précisé dans ce

règlement ou cet arrêté.

It includes any physical activity that is Sont comprises les activités concrètes

incidental to those physical activities. qui leur sont accessoires.

[58] The remaining subsections in section 52 deal with the timeframe in which the Board must

complete its report. Generally, a report must be submitted to the Minister within the time limit

specified by the Chair of the Board. The specified time limit must not be longer than 15 months

after the completed application has been submitted to the Board.

Page: 23

B.

The requirements of the Canadian Environmental Assessment Act, 2012

[59] Pursuant to subsection 4(3) of the Regulations Designating Physical Activities,

SOR/2012-147, and section 46 of the Schedule thereto, because the Project includes a new

onshore pipeline longer than 40 kilometres, the Project is a designated project as defined in part

(b) of the definition of “designated project” set out in paragraph 57 above. In consequence, the

Board was required to conduct an environmental assessment under the Canadian Environmental

Assessment Act, 2012. For this purpose, subsection 15(b) of the Canadian Environmental

Assessment Act, 2012 designated the National Energy Board to be the sole responsible authority

for the environmental assessment.

[60] As the responsible authority, the Board was required to take into account the

environmental effects enumerated in subsection 5(1) of the Canadian Environmental Assessment

Act, 2012. These effects include changes caused to the land, water or air and to the life forms that

inhabit these elements of the environment. The effects to be considered are to include the effects

upon Aboriginal peoples’ health and socio-economic conditions, their physical and cultural

heritage, their current use of lands and resources for traditional purposes, and any structure, site

or thing that is of historical, archaeological, paleontological or architectural significance.

[61] Subsection 19(1) of the Canadian Environmental Assessment Act, 2012 required the

Board to take into account a number of enumerated factors when conducting the environmental

assessment, including:



the environmental effects of the designated project (including the environmental

effects of malfunctions or accidents that may occur in connection with the

Page: 24

designated project) and any cumulative environmental effects that are likely to

result from the designated project in combination with other physical activities

that have been or will be carried out;



mitigation measures that are technically and economically feasible and that would

mitigate any significant adverse environmental effects of the designated project;

alternative means of carrying out the designated project that are technically and

economically feasible, and the environmental effects of any such alternative

means; and



any other matter relevant to the environmental assessment that the responsible

authority, here the Board, requires to be taken into account.

[62] The Board was also required under subsection 29(1) of the Canadian Environmental

Assessment Act, 2012 to make recommendations to the Governor in Council with respect to the

decision to be made by the Governor in Council under paragraph 31(1)(a) of that Act—a

decision about the existence of significant adverse environmental effects and whether those

effects can be justified in the circumstances.

C.

Consideration by the Governor in Council

[63] Once in receipt of the report prepared in accordance with the requirements of the

National Energy Board Act and the Canadian Environmental Assessment Act, 2012, the

Governor in Council may make its decision concerning the proponent’s application for a

certificate.

[64] Three decisions are available to the Governor in Council. It may, by order:

Page: 25

“direct the Board to issue a certificate in respect of the pipeline or any part of it

i.

and to make the certificate subject to the terms and conditions set out in the

report” (paragraph 54(1)(a) of the National Energy Board Act); or

“direct the Board to dismiss the application for a certificate” (paragraph 54(1)(b)

of the National Energy Board Act); or

ii.

iii.

“refer the recommendation, or any of the terms and conditions, set out in the

report back to the Board for reconsideration” and specify a time limit for the

reconsideration (subsections 53(1) and (2) of the National Energy Board Act).

[65] Subsection 54(2) of the National Energy Board Act requires that the Governor in

Council’s order “must set out the reasons for making the order.”

[66] Subsection 54(3) of the National Energy Board Act requires the Governor in Council to

issue its order within three months after the Board’s report is submitted to the Minister. The

Governor in Council may, on the recommendation of the Minister, extend this time limit.

[67] Additionally, once the National Energy Board as the responsible authority for the

designated project has submitted its report with respect to the environmental assessment,

pursuant to subsection 31(1) of the Canadian Environmental Assessment Act, 2012, the Governor

in Council may, by order made under subsection 54(1) of the National Energy Board Act,

“decide, taking into account the implementation of any mitigation measures specified in the

report with respect to the environmental assessment … that the designated project”:

(i) is not likely to cause significant

adverse environmental effects,

(i) n’est pas susceptible d’entraîner

des effets environnementaux négatifs

et importants,

(ii) is likely to cause significant

(ii) est susceptible d’entraîner des

adverse environmental effects that can effets environnementaux négatifs et

importants qui sont justifiables dans

Page: 26

be justified in the circumstances, or

les circonstances,

(iii) is likely to cause significant

adverse environmental effects that

cannot be justified in the

circumstances;

(iii) est susceptible d’entraîner des

effets environnementaux négatifs et

importants qui ne sont pas justifiables

dans les circonstances;

VI.

The report of the National Energy Board

[68] On May 19, 2016, the Board issued its report which recommended approval of the

Project. The recommendation was based on a number of findings, including:



With the implementation of Trans Mountain’s environmental protection

procedures and mitigation measures, and the Board’s recommended conditions,

the Project is not likely to cause significant adverse environmental effects.

However, effects from 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 that species. Southern resident killer

whales are an endangered species that reside in the Salish Sea. Project-related

marine shipping follows a route through the Salish Sea to the open ocean that

travels through the whales’ critical habitat as identified in the Recovery Strategy

for the Northern and Southern resident killer whales. The Board’s finding was

that “the operation of Project-related marine vessels is likely to result in

significant adverse effects to the Southern resident killer whale, and that it is

likely to result in significant adverse effects on Aboriginal cultural uses associated

with these marine mammals.”



The likelihood of a spill from the Project or from a Project-related tanker would

be very low in light of the mitigation and safety measures to be implemented.

However, the consequences of large spills could be high.

The Board’s recommendation and decisions with respect to the Project were

consistent with subsection 35(1) of the Constitution Act, 1982.

Page: 27



The Project would be in the Canadian public interest and would be required by the

present and future public convenience and necessity.

If approved, the Board would attach 157 conditions to the certificate of public

convenience and necessity. The conditions dealt with a broad range of matters,

including the safety and integrity of the pipeline, emergency preparedness and

response and ongoing consultation with affected entities, including Indigenous

communities.

VII. The decision of the Governor in Council

[69] On November 29, 2016, the Governor in Council issued the Order in Council, accepting

the Board’s recommendation that the Project be approved and directing the Board to issue a

certificate of public convenience and necessity to Trans Mountain.

[70] The Order in Council contained a number of recitals, two of which are relevant to these

applications. First, the Governor in Council stated its satisfaction “that the consultation process

undertaken is consistent with the honour of the Crown and the [Aboriginal] concerns and

interests have been appropriately accommodated”. Second, the Governor in Council accepted the

Board’s recommendation that the Project is required by present and future public convenience

and necessity and that it will not likely cause significant adverse environmental effects.

[71] The Order in Council was followed by a 20-page explanatory note which was stated not

to form part of the Order in Council. The Explanatory Note described the Project and its

objectives and the review process before the National Energy Board, and summarized the issues

raised before the Board. The Explanatory Note also dealt with matters that post-dated the

Board’s report and set out the government’s “response to what was heard”.

Page: 28

VIII. Factual background

A.

Canada’s consultation process

[72] The first step in the consultation process was determining the Indigenous groups whose

rights and interests might be adversely impacted by the Project. In order to do this, a number of

federal departments and the National Energy Board coordinated research and analysis on the

proximity of Indigenous groups’ traditional territories to elements of the Project, including the

proposed pipeline right-of-way, the marine terminal expansion, and the designated shipping

lanes. Approximately 130 Indigenous groups were identified, including all of the Indigenous

applicants.

[73] On August 12, 2013, the National Energy Board wrote to the identified Indigenous

groups to advise that Trans Mountain had filed a Project description on May 23, 2013, and to

provide preliminary information about the upcoming review process. This letter also attached a

letter from the Major Projects Management Office of Natural Resources Canada. The Major

Projects Management Office’s letter advised that Canada would rely on the National Energy

Board’s public hearing process:

to the extent possible, to fulfil any Crown duty to consult Aboriginal groups for

the proposed Project. Through the [National Energy Board] process, the [Board]

will consider issues and concerns raised by Aboriginal groups. The Crown will

utilise the [National Energy Board] process to identify, consider and address the

potential adverse impacts of the proposed Project on established or potential

Aboriginal and treaty rights.

[74] In subsequent letters sent to Indigenous groups between August 2013 and February 19,

2016, the Major Projects Management Office directed Indigenous groups that could be impacted

Page: 29

by the Project to participate in and communicate their concerns through the National Energy

Board public hearings. Additionally, Indigenous groups were advised that Canada viewed the

consultation process to be as follows:

i.

Canada would rely, to the extent possible, on the Board’s process to fulfil its duty

to consult Indigenous peoples about the Project;

ii.

There would be four phases of Crown consultation:

a.

b.

c.

“Phase I”: early engagement, from the submission of the Project

description to the start of the National Energy Board hearing;

“Phase II”: the National Energy Board hearing, commencing with the start

of the Board hearing and continuing until the close of the hearing record;

“Phase III”: consideration by the Governor in Council, commencing with

the close of the hearing record and continuing until the Governor in

Council rendered its decision in relation to the Project; and

d.

“Phase IV”: regulatory authorization should the Project be approved,

commencing with the decision of the Governor in Council and continuing

until the issuance of department regulatory approvals, if required.

iii.

iv.

Natural Resources Canada’s Major Projects Management Office would serve as

the Crown Consultation Coordinator for the Project.

Following Phase III consultations, an adequacy of consultation assessment would

be prepared by the Crown. The assessment would be based upon the depth of

consultation owed to each Indigenous group. The depth of consultation owed

would in turn be based upon the Project’s potential impact on each group and the

strength of the group’s claim to potential or established Aboriginal or treaty

rights.

[75] On May 25, 2015, towards the end of Phase II, the Major Projects Management Office

wrote to Indigenous groups, including the applicants, to provide additional information on the

scope and timing of Phase III Crown consultation. Indigenous groups were advised that:

Page: 30

Canada intended to submit summaries of the concerns and issues Indigenous

i.

groups had brought forward to date and to seek feedback on the completeness and

accuracy of the summaries. The summaries would be issued in the form of

Information Requests, a Board hearing process explained below. Canada would

also seek Indigenous groups’ views on adverse impacts not yet addressed by

Trans Mountain’s mitigation measures. The Crown would use the information

provided by Indigenous groups to “refine our current understanding of the

potential impacts of the project on asserted or established Aboriginal or treaty

rights.”

ii.

Phase III consultation would focus on two questions:

a.

Are there outstanding concerns with respect to Project-related impacts to

potential or established Aboriginal or treaty rights?

b.

Are there incremental accommodation measures that should be considered

by the Crown to address any outstanding concerns?

iii.

Information made available to the Crown throughout each phase of the

consultation process would be consolidated into a “Crown Consultation Report”.

“This report will summarize both the procedural aspects of consultations

undertaken and substantive issues raised by Aboriginal groups, as well as how

these issues may be addressed in the process”. The section of the Crown

Consultation Report dealing with each Indigenous group would be provided to the

group for review and comment before the report was placed before the Governor

in Council.

iv.

If Indigenous groups identified outstanding concerns there were a number of

options which might “be considered and potentially acted upon.” The options

were described to be:

The Governor in Council has the option of asking the [National

Energy Board] to reconsider its recommendation and conditions.

Federal and provincial governments could undertake additional

consultations prior to issuing additional permits and/or

authorizations. Finally, federal and provincial governments can

also use existing or new policy and program measures to address

outstanding concerns.

(underlining added)

Page: 31

B.

Prehearing matters and the Project application

[76] To facilitate participation in the National Energy Board hearing process, the Board

operates a participant funding program. On July 22, 2013, the Board announced that it was

making funding available under this program to assist landowners, Indigenous groups and other

interested parties to participate in the Board’s consideration of the Project. To apply for funding,

a party required standing as an intervener in the Board’s process.

[77] On July 29, 2013, the Board released its “list of issues” which identified the topics the

Board would consider in its review of the Project. The following issues of relevance to these

applications were included:



the need for the proposed Project.

the potential environmental and socio-economic effects of the proposed Project,

including any cumulative environmental effects that were likely to result from the

Project, including those the Board’s Filing Manual required to be considered.

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 might occur.



the terms and conditions to be included in any recommendation to approve the

Project that the Board might issue.



the potential impacts of the Project on Indigenous interests.

contingency plans for spills, accidents or malfunctions, during construction and

operation of the Project.

[78] On September 10, 2013, the Board issued “Filing Requirements Related to the Potential

Environmental and Socio-Economic Effects of Increased Marine Shipping Activities.” This was

Page: 32

a guidance document intended to assist the proponent. The document described requirements that

supplemented those set out in the Board’s Filing Manual.

[79] In particular, this guidance document required Trans Mountain’s assessment of accidents

and malfunctions to deal with a number of things, including measures to reduce the potential for

accidents and malfunctions, credible worst case spill scenarios together with smaller spill

scenarios and information on the fate and behaviour of any spilled hydrocarbons. For all

mitigation measures Trans Mountain proposed, it was required to describe the roles,

responsibilities and capabilities of each relevant organization in implementing mitigation

measures, and the level of care and control Trans Mountain would have in overseeing or

implementing the measures.

[80] On December 16, 2013, Trans Mountain formally filed its application, seeking approval

to construct and operate the Project.

C.

The scoping decision and the hearing order

[81] On April 2, 2014, the Board issued a number of decisions setting the parameters of the

Project’s environmental assessment and establishing the hearing process for the Project. Three of

these decisions are of particular relevance to these applications.

[82] First, the Board issued a hearing order which set out timelines and a process for the

hearing. The hearing order did not allow any right of oral cross-examination. Instead, the hearing

order provided a process whereby interveners and the Board could submit written interrogatories,

Page: 33

referred to as Information Requests, to Trans Mountain. The hearing order also set out a process

for interveners and the Board to compel adequate responses to their Information Requests, an

opportunity for Indigenous groups to provide oral traditional evidence, and allowed both written

arguments in chief and summary oral arguments.

[83] Next, in the decision referred to as the “scoping” decision, the Board defined the

“designated project” to be assessed, and described the factors to be assessed under the Canadian

Environmental Assessment Act, 2012 (and the scope of each factor). In defining the “designated

project”, the Board did not include marine shipping activities as part of the “designated project”.

Rather, the Board stated that it would consider the effects of increased marine shipping under the

National Energy Board Act. To the extent there was potential for environmental effects of the

designated project to interact with the effects of the marine shipping, the Board would consider

those effects under the cumulative effects portion of the Canadian Environmental Assessment

Act, 2012 environmental assessment.

[84] Finally, the Board ruled on participation rights in the hearing. The Board granted

participation status to 400 interveners and 1,250 commentators. All of the applicants before the

Court applied for, and were granted, intervener status. Additionally, a number of government

departments were granted intervener status; both Health Canada and the Pacific Pilotage

Authority were granted commentator status.

Page: 34

D.

Challenges to the hearing order and the scoping decision

[85] Of relevance to issues raised in these applications are two challenges brought against the

hearing order and the scoping decision.

[86] The first challenge requested that all evidence filed in the hearing be subject to oral cross-

examination. The Board dismissed this request in Ruling No. 14. In Ruling No. 51, the Board

dismissed motions seeking reconsideration of Ruling No. 14.

[87] The second challenge was brought by Tsleil-Waututh to aspects of both the hearing order

and the scoping decision. Tsleil-Waututh asserted, among other things, that the Board erred in

law by failing to include marine shipping activities in the Project description. This Court granted

Tsleil-Waututh leave to appeal this and other issues. On September 6, 2016, this Court dismissed

the appeal (2016 FCA 219). The dismissal of the appeal was expressly stated, at paragraph 21 of

the Court’s reasons, to be without prejudice to Tsleil-Waututh’s right to raise the issue of the

proper scope of the Project “in subsequent proceedings”.

E.

The TERMPOL review process

[88] In view of the Project’s impact on marine shipping, it is useful to describe this process.

[89] Trans Mountain requested that the marine transportation components of the Project be

assessed under the voluntary Technical Review Process of Marine Terminal Systems and

Transshipment Sites (TERMPOL). The review process was chaired by Transport Canada and the

Page: 35

review committee was composed of representatives of other federal agencies and Port Metro

Vancouver.

[90] The purpose of the review process was to objectively appraise operational vessel safety,

route safety and cargo transfer operations associated with the Project, with a focus on improving,

where possible, elements of the Project.

[91] The review committee did not identify regulatory concerns for the tankers, tanker

operations, the proposed route, navigability, other waterway users or the marine terminal

operations associated with tankers supporting the Project. It found that Trans Mountain’s

commitments to the existing marine safety regime would provide for a higher level of safety for

tanker operations appropriate to the increase in traffic.

[92] The review committee also proposed certain measures to provide for a high level of

safety for tanker operations. Examples of such proposed measures were the extended use of

tethered and untethered tug escorts and the extension of the pilot disembarkation zone. Trans

Mountain agreed to adopt each of the recommended measures.

[93] The TERMPOL report formed part of Transport Canada’s written evidence before the

National Energy Board.

F.

The applicants’ participation in the hearing before the Board

[94] The applicants, as interveners before the Board, were entitled to:

Page: 36



issue Information Requests to Trans Mountain and others;

file motions, including motions to compel adequate responses to Information

Requests;



file written evidence;

comment on draft conditions; and,

present written and oral summary argument.

[95] All of the applicants issued Information Requests, filed or supported motions and filed

written evidence. Interveners who filed evidence were required to respond in writing to written

questions about their evidence from the Board, Trans Mountain or other interveners.

[96] All of the applicants filed written submissions commenting on draft conditions except for

the City of Vancouver and SSN.

[97] All of the applicants filed written arguments and all of the applicants except SSN

delivered oral summary arguments.

[98] Indigenous interveners could adduce traditional Indigenous evidence, either orally or in

writing. Oral evidence could be questioned orally by other interveners, Trans Mountain or the

Board. Tsleil-Waututh, Squamish, Coldwater, SSN, and Upper Nicola provided oral, Indigenous

traditional evidence. The Stó:lō Collective formally objected to the Board’s procedure for

introducing Indigenous oral traditional evidence and did not provide such evidence.

Page: 37

G.

Participant funding

[99] As previously mentioned, the Board operated a participant funding program. Additional

funding was available through the Major Projects Management Office and Trans Mountain.

[100] It is fair to say that the participant funding provided to the applicants by the Board and

the Major Projects Management Office was generally viewed to be inadequate by them (see for

example the affidavit of Chief Ian Campbell of the Squamish Nation). Concerns were also

expressed about delays in funding. Funds provided by the Board could only be applied to work

conducted after the funding was approved and a funding agreement was executed.

[101] The following funds were paid or offered.

1.

Tsleil-Waututh Nation

[102] Tsleil-Waututh requested $766,047 in participant funding. It was awarded $40,000, plus

travel costs for two members to attend the hearing. Additionally, the Major Projects Management

Office offered to pay $14,000 for consultation following the close of the hearing record and

$12,000 following the release of the Board’s report. These offers were not accepted.

2.

The Squamish Nation

[103] Squamish applied for $293,350 in participant funding. It was awarded $44,720, plus

travel costs for one person to attend the hearing. The Major Projects Management Office offered

Page: 38

$12,000 for consultations following the close of the Board’s hearing record, and $14,000 to

support participation in consultations following the release of the Board’s report. These funds

were paid.

3.

Coldwater Indian Band

[104] Coldwater was awarded $48,490 in participant funding from the Board. Additionally, the

Major Projects Management Office offered an additional $52,000 in participant funding.

4.

The Stó:lō Collective

[105] The Stó:lō Collective was awarded $42,307 per First Nation band in participant funding

from the Board. Additionally, the Major Projects Management Office offered $4,615.38 per First

Nation band for consultation following the close of the Board’s hearing record, and $5,384.61

per First Nation band following the release of the Board’s report.

5.

Upper Nicola Band

[106] Upper Nicola was awarded $40,000 plus travel costs for two members to attend the

hearing and an additional $10,000 in special funding through the Board’s participant funding

program. Additionally, the Major Projects Management Office offered Upper Nicola Band and

the Okanagan Nation Alliance $11,977 and $24,000 respectively in participant funding for

consultations following the close of the Board’s hearing record. The Okanagan Nation Alliance

was offered an additional $26,000 following the release of the Board’s report.

Page: 39

6.

SSN

[107] SSN applied for participant funding in excess of $300,000 in order to participate in the

Board’s hearing. It was awarded $36,920 plus travel costs for two members to attend the hearing.

Additionally, the Major Projects Management Office offered $18,000 in participation funding for

consultations following the close of the Board’s hearing record and $21,000 for consultations

following the release of the Board’s report.

7.

Raincoast Conservation Foundation and Living Oceans Society

[108] Raincoast was awarded $111,100 plus travel costs for two people to attend the hearing

from the Board’s participant funding program. Living Oceans was awarded $89,100 plus travel

costs for two persons to attend the hearing through the participant funding program.

H.

Crown consultation efforts—a brief summary

1.

Phase I (from 2013 to April 2014)

[109] In this initial engagement phase some correspondence was exchanged between the Crown

and some of the Indigenous applicants. Canada does not suggest that any of this correspondence

contained any discussion about any substantive matter.

2.

Phase II (from April 2014 to February 2016)

[110] During the Board’s hearing process and continuing until the close of its hearing record,

Canada continued to exchange correspondence with some of the Indigenous applicants.

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Additionally, some informational meetings were held; however, these meetings did not allow for

any substantive discussion about any group’s title, rights or interests, or the impact of the Project

on the group’s title, rights or interests.

[111] To illustrate, Crown representatives met with Squamish officials on September 11, 2015,

and November 27, 2015. At these meetings Squamish raised a number of concerns, including its

concerns that Squamish had not been involved in the design of the consultation process, that the

consultation process was inadequate to assess impacts on Squamish rights and title and that

inadequate funding was provided for participation in the Board’s hearing. Squamish also

expressed confusion about the respective roles of the Board and Trans Mountain in consultations

with Squamish.

[112] Similarly, informational meetings were held with the Stó:lō Collective on July 18, 2014

and December 3, 2015. Again, no substantive discussion took place about Stó:lō’s title, rights

and interests or the impact of the Project thereon. The Stó:lō also expressed their concerns about

the consultation process, including their concerns that the Board failed to compel Trans

Mountain to respond adequately to Information Requests and the lack of specificity of the

Board’s draft terms and conditions.

[113] Informational hearings of this nature were also held with Upper Nicola and SSN in 2014.

[114] It is fair to say that in Phase II Canada continued to rely upon the National Energy Board

process to fulfil the Crown’s duty to consult. Canada’s efforts in Phase II were largely directed to

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using the Information Request process to solicit concerns and potential mitigation measures from

First Nations. Canada prepared tables to record potential Project impacts and concerns and to

record and monitor whether those potential impacts and concerns were addressed in Trans

Mountain’s commitments, the Board’s draft terms and conditions or other mitigation measures.

3.

Phase III (February to November 2016)

[115] Crown representatives met with all of the Indigenous applicants in Phase III. Generally,

the Indigenous applicants expressed dissatisfaction with the National Energy Board process and

the Crown’s reliance on that process. Individual concerns raised by individual Indigenous

applicants will be discussed in the context of consideration of the adequacy of Canada’s

consultation efforts.

[116] Towards the latter part of Phase III, on August 16, 2016, the Major Projects Management

Office and the British Columbia Environmental Assessment Office jointly sent a letter to

Indigenous groups confirming that they were responsible for conducting consultation efforts for

the Project, and that they were coordinating by participating in joint consultation meetings,

sharing information and by preparing the draft “Joint Federal/Provincial Consultation and

Accommodation Report for the Trans Mountain Expansion Project” (Crown Consultation

Report).

[117] Canada summarized its consultation efforts in the Crown Consultation Report, which

included appendices specific to individual Indigenous groups. Indigenous groups were generally

provided with a first draft of the Crown Consultation Report, together with the appendix relevant

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to that group, in August of 2016. Comments and corrections were to be provided in September

2016. A second draft of the Crown Consultation Report, together with relevant appendices, was

provided to Indigenous groups in November of 2016, with comments due by mid-November.

I.

Post National Energy Board report events

1.

The Interim Measures for Pipeline Reviews

[118] On January 27, 2016, Canada introduced this initiative as part of a strategy to review

Canada’s environmental assessment processes. The Interim Measures set out five guiding

principles to guide the approval of major pipeline projects:

i.

No proponent would be required to return to the beginning of the approval

process. That is, no proponent would be required to begin the approval process

afresh.

ii.

Decisions about pipeline approval would be based on science, traditional

knowledge of Indigenous peoples and other relevant evidence.

The views of the public and affected communities would be sought and

considered.

iii.

iv.

v.

Indigenous peoples would be meaningfully consulted, and, where appropriate,

accommodated.

The direct and upstream greenhouse gas emissions linked to a project under

review would be assessed.

[119] Canada advised that it planned to apply the Interim Measures to the Project and that in

order to do so it would: undertake deeper consultations with Indigenous peoples and provide

funding to support participation in these deeper consultations; assess the upstream gas emissions

associated with the Project and make this information public; and, appoint a ministerial

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representative to engage local communities and Indigenous groups in order to obtain their views

and report those views back to the responsible Minister.

[120] The Minister of Natural Resources sought and obtained a four-month extension of time to

permit implementation of the Interim Measures. The deadline for the Governor in Council to

make its decision on Project approval was, therefore, on or before December 19, 2016.

2.

The Ministerial Panel

[121] On May 17, 2016, the Minister announced he was striking a three-member independent

Ministerial Panel that would engage local communities and Indigenous groups as contemplated

in Canada’s implementation of the Interim Measures for the Project.

[122] The Ministerial Panel held a series of public meetings in Alberta and British Columbia,

received emails and received responses to an online questionnaire. The Ministerial Panel

submitted its report to the Minister on November 1, 2016, in which it identified six “high-level

questions” that “remain unanswered” that it commended to Canada for serious consideration.

[123] The report of the Ministerial Panel expressly stated that the panel’s work was “not

intended as part of the federal government’s concurrent commitment to direct consultation with

First Nations” and that “full-scale consultation” was never the intent of the panel “especially in

the case of First Nations, where the responsibility for consultation fell elsewhere”. It follows that

no further consideration of the Ministerial Panel is required in the context of consideration of the

adequacy of Canada’s consultation efforts.

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3.

Greenhouse gas assessment

[124] For completeness, I note that in November 2016, Environment Canada did publish an

assessment estimating the upstream greenhouse gas emissions from the Project.

IX.

The issues to be determined

[125] Broadly speaking, the applicants’ submissions require the Court to address the following

questions.

[126] First, is there merit in any of the preliminary issues raised by the parties?

[127] Second, under the applicable legislative scheme, can the report of the National Energy

Board be judicially reviewed?

[128] Finally, should the decision of the Governor in Council be set aside? This in turn requires

the Court to consider:

i.

What is the standard of review to be applied to the decision of the Governor in

Council?

ii.

Did the Governor in Council err in determining whether the Board’s process of

assembling, analyzing, assessing and studying the evidence before it was so

deficient that the report submitted by it to the Governor in Council did not qualify

as a “report” within the meaning of the National Energy Board Act? This will

require the Court to consider:

a.

b.

was the process adopted by the Board procedurally fair?

did the Board err by failing to assess Project-related marine shipping

under the Canadian Environmental Assessment Act, 2012?

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did the Board err in its treatment of the Species at Risk Act, S.C. 2002, c.

c.

d.

e.

29?

did the Board impermissibly fail to decide certain issues before it

recommended approval of the Project?

did the Board impermissibly fail to consider alternatives to the Westridge

Marine Terminal?

iii.

iv.

Did the Governor in Council fail to comply with the statutory requirement to give

reasons?

Did the Governor in Council err by concluding that the Indigenous applicants

were adequately consulted and, if necessary, accommodated?

X.

Consideration of the issues

A.

The preliminary issues

[129] Before turning to the substantive issues raised in this application it is necessary to deal

with three preliminary issues raised by the parties. They may be broadly characterized as

follows.

[130] First, as described above, a number of the applicants commenced applications

challenging the report of the National Energy Board. Trans Mountain moves to strike on a

preliminary basis the six applications for judicial review commenced in respect of the report of

the National Energy Board on the ground that the report is not amenable to judicial review.

[131] Second, the applicants ask that the two affidavits sworn on behalf of Trans Mountain by

Robert Love, or portions thereof, be struck or given no weight on a number of grounds, including

that Mr. Love had no personal knowledge of the bulk of the matters sworn to in his affidavits.

Page: 46

[132] Finally, the applicants object to the “Consultation Chronologies” found in Canada’s

compendium.

1.

Trans Mountain’s motion to strike

[133] In Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418, at paragraph 125,

this Court concluded that applications for judicial review do not lie against reports made

pursuant to section 52 of the National Energy Board Act recommending whether a certificate of

public convenience and necessity should issue for all or any portion of a pipeline. Accordingly,

Trans Mountain seeks orders striking the six notices of application (listed above at paragraph 51)

that challenge the Board’s report.

[134] A comparison of the parties enumerated in paragraph 51 with those parties who challenge

the decision of the Governor in Council (enumerated in paragraph 52) shows that all but one of

the applicants who challenge the report of the National Energy Board also challenge the decision

of the Governor in Council. For reasons not apparent on the record, the City of Vancouver

elected to challenge only the report of the Board.

[135] The City of Vancouver, supported by the City of Burnaby, Tsleil-Waututh, Raincoast and

Living Oceans, responds to Trans Mountain by arguing that Gitxaala was wrongly decided on

this point and that in any event, the applications should not be struck on a preliminary basis.

[136] Those applicants who challenge both decisions are able to argue, and do argue, that in

Gitxaala this Court determined that the decision of the Governor in Council cannot be

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considered in isolation from the Board’s report; it is for the Governor in Council to determine

whether the process followed by the Board in assembling, analyzing, assessing, and studying the

evidence before it was so deficient that its report does not qualify as a “report” within the

meaning of the National Energy Board Act.

[137] Put another way, a statutory pre-condition for a valid Order in Council is a report from

the Board prepared in accordance with all legislative requirements. The Governor in Council is

therefore required to be satisfied that the report was prepared in accordance with the governing

legislation. This makes practical sense as well because the Board’s report formed the factual

basis for the decision of the Governor in Council.

[138] It is in the context of these arguments that I turn to consider whether the applications

should be struck on a preliminary basis.

[139] The jurisprudence of this Court is uniformly to the effect that motions to strike

applications for judicial review are to be resorted to sparingly: see, for example, Odynsky v.

League for Human Rights of B’Nai Brith Canada, 2009 FCA 82, 387 N.R. 376, at paragraph 5,

citing David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C.R. 588, (1994),

176 N.R. 48.

[140] The rationale for this approach is that judicial review proceedings are designed to

proceed with celerity; motions to strike carry the potential to unduly and unnecessarily delay the

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expeditious determination of an application. Therefore justice is better served by allowing the

Court to deal at one time with all of the issues raised by an application.

[141] This rationale is particularly applicable in the present case where striking the applications

would still leave intact the ability of all but one of the applicants to argue the asserted flaws in

the Board’s report in the context of the Court’s review of the decision of the Governor in

Council. Little utility would be achieved in deciding the motions when the arguments in support

of them will be considered now, in the Court’s determination of the merits of the applications.

[142] For this reason, in the exercise of my discretion I would dismiss Trans Mountain’s

motion to strike the applications brought challenging the report of the National Energy Board. I

deal with the merits of the argument that the report is not amenable to judicial review below at

paragraph 170 and following.

2.

The applicants’ motion asking that the two affidavits of Robert Love, or

portions thereof, be struck or given no weight

[143] The applicants argue that the Love affidavits, or portions thereof, should be struck or

given no weight on three grounds. First, the applicants argue that Mr. Love had no personal

knowledge of the bulk of the matters sworn to in his affidavits so that his evidence should be

disregarded as inadmissible hearsay. Second, the applicants argue that the affidavits contain

irrelevant and impermissible evidence about Trans Mountain’s engagement and consultations

with the Indigenous applicants. Finally, the applicants argue that the second affidavit

impermissibly augments the evidence that was before the Board and the Governor in Council.

Page: 49

(a)

The hearsay objection

[144] In both impugned affidavits Mr. Love swore that “I have personal knowledge of the

matters in this Affidavit, except where stated to be based on information and belief, in which

case I believe the same to be true.” Notwithstanding this statement, on cross-examination, Mr.

Love admitted that his first affidavit was based almost entirely on facts of which he had no

personal knowledge and that his affidavit failed to disclose that he relied on information and

belief to assert those facts. He largely relied on Trans Mountain’s lawyers to prepare the

paragraphs of his affidavit of which he had no direct knowledge. The basis of his belief that his

affidavit was truthful and accurate was his “trust in other people”. He frequently admitted that

there were other Trans Mountain employees who had direct knowledge of the matters set out in

his affidavit (cross-examination of Robert Love, June 19, 2017, by counsel for the City of

Burnaby, page 14, line 17 to page 50, line 8).

[145] Similarly, under cross-examination Mr. Love admitted that he had no personal

knowledge of the contents of his second affidavit which dealt with Trans Mountain’s

consultation with Squamish (cross-examination Robert Love, June 22, 2017, by counsel for

Squamish, page 2, line 7 to page 11, line 4). When cross-examined by counsel for Coldwater,

Mr. Love admitted that he was “largely” not involved with Trans Mountain’s engagement with

Coldwater. Rather, “[i]t was the aboriginal engagement team who did the communications.”

(cross-examination of Robert Love, June 22, 2017, by counsel for Coldwater, page 2, line 9 to

page 2, line 21).

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[146] Mr. Love is the Manager, Land and Rights-of-Way for Kinder Morgan Canada Inc., a

company related to Trans Mountain. During his cross-examination by counsel for Squamish he

described his role to be responsible for securing “all of the private land interest for the Trans

Mountain Expansion Project and to obtain all utility crossings”. He was also responsible “for

undertaking the land rights necessary to go through about 10 reserves that we have agreements

with.” Later, on his cross-examination, he explained that prior to swearing his affidavit he “sat

down with Regan Schlecker and went through most of the First Nation’s engagement and high-

level [government] engagements that were happening here” because he had no direct

involvement in those engagements. Regan Schlecker was Trans Mountain’s Aboriginal affairs

manager.

[147] On the basis of Mr. Love’s many admissions the applicants argue that Mr. Love’s

evidence should be struck or given no weight.

[148] Trans Mountain argues in response that the City of Burnaby failed to object to the Love

affidavits on a timely basis. It also argues that on judicial review the parties can provide

background explanations and summaries regarding the administrative proceeding below and that

no applicant points to any important statements in the affidavits that were shown to be based on

hearsay.

[149] I begin by rejecting Trans Mountain’s argument that the arguments raised by Burnaby

were raised too late and so should not be considered. While Burnaby may well not have raised its

hearsay objection on a timely basis (see the order of the case management Judge issued on July

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25, 2017), both the City of Vancouver and Squamish did object to the Love affidavits on a timely

basis. Squamish adopts Burnaby’s objections (Squamish’s memorandum of fact and law,

paragraph 133) and the City of Vancouver relies upon the cross-examination of Mr. Love

conducted by counsel for Burnaby (Vancouver’s memorandum of fact and law, paragraph 109).

On this basis, in my view, Burnaby’s arguments are properly before the Court.

[150] With respect to Trans Mountain’s argument on the merits, I begin by noting that to the

extent background statements and summaries are admissible on an application for judicial

review, this admissibility is for the sole and limited purpose of orienting the reviewing Court. In

any event and more importantly, affidavits must always fully and candidly disclose if an affiant

is relying on information and belief and what portions of the affidavit are based on information

and belief. In that event, the affiant must disclose both the sources of the information relied upon

and the bases for the affiant’s belief in the truth of the information sworn to. This was not done

in the present case.

[151] Notwithstanding this failure, I do not see the need to strike portions of the Love

affidavits. The affidavits are relevant for the purpose of orienting the Court. However, it is

unsafe to rely on the contents of the Love affidavits for the purpose of establishing the truth of

their contents unless Mr. Love had personal knowledge of a particular fact or matter. Because

Mr. Love did not demonstrate any material, personal knowledge of Trans Mountain’s

engagement with the Indigenous applicants, and because there is no explanation as to why an

individual directly involved in that engagement could not have provided evidence, evidence of

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Trans Mountain’s engagement must come from other sources—such as the consultation logs

Trans Mountain placed in evidence before the Board.

[152] As I have determined that it is unsafe except in limited circumstances to rely upon the

contents of the Love affidavits to establish the truth of their contents, it is unnecessary for me to

consider the applicants’ objection to the second affidavit on the ground that it impermissibly

supplemented the consultation logs in evidence before the Board.

(b)

Relevance of evidence of Trans Mountain’s engagement with the

Indigenous applicants

[153] In answer to an Information Request issued by Squamish inquiring whether Canada

delegated any procedural aspects of consultation to Trans Mountain, Canada responded:

The Crown has not delegated the procedural aspects of its duty to consult to Trans

Mountain. The Crown does rely on the [National Energy Board] review process to

the extent possible to fulfill this duty, a process that requires the proponent to

work with and potentially accommodate Aboriginal groups impacted by the

project. The [National Energy Board] filing manual provides information to the

proponent on the requirement to engage potentially affected Aboriginal groups.

This does not constitute delegation of the duty to consult.

(underlining added)

[154] Based on this response, the Indigenous applicants argue that evidence of Trans

Mountain’s engagement with them is irrelevant. It is necessary to consider this submission

because it is an issue that transcends the Love affidavits—there is other evidence of Trans

Mountain’s engagement.

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[155] I accept Trans Mountain’s submission that proper evidence of its engagement with the

Indigenous applicants is relevant. I reach this conclusion for the following reasons.

[156] First, the Indigenous applicants were informed by the Major Projects Management

Office’s letter of August 12, 2013, that Canada would rely on the Board’s public hearing process

“to the extent possible” to fulfil the Crown’s duty to consult. As Canada noted in its response to

the Information Request, the Board’s hearing process required Trans Mountain to work with, and

potentially accommodate, Indigenous groups impacted by the Project. Thus the Major Projects

Management Office’s August 12 letter encouraged Indigenous groups with Project-related

concerns to discuss those concerns directly with Trans Mountain. Unresolved concerns were to

be directed to the National Energy Board. It follows from this that the Indigenous applicants

were informed before the commencement of the Board’s hearing process that the Board and, in

turn, Canada would rely in part on Trans Mountain’s engagement with them.

[157] Thereafter, the Board required Trans Mountain “to make all reasonable efforts to consult

with potentially affected Aboriginal groups and to provide information about those consultations

to the Board.” The Board expressly required this information to include “evidence on the nature

of the interests potentially affected, the concerns that were raised and the manner and degree to

which those concerns have been addressed. Trans Mountain was expected to report to the Board

on all Aboriginal concerns that were expressed to it, even if it was unable or unwilling to address

those concerns”. (Report of the National Energy Board, page 46).

Page: 54

[158] Trans Mountain’s consultation was guided by the Board’s Filing Manual requirements

and directions given by the Board during the Project Description phase.

[159] This demonstrates that Trans Mountain’s consultation was central to the decision of the

Board. Therefore, evidence of Trans Mountain’s efforts is relevant.

[160] My second reason for finding proper evidence of Trans Mountain’s engagement to be

relevant is that, consistent with Canada’s response to Squamish’s Information Request, a review

of the Crown Consultation Report shows that in Section 3 Canada summarized “the procedural

elements and chronology of Aboriginal consultations and engagement activities undertaken by

the proponent, the [Board] and the Crown.” Elements of Trans Mountain’s engagement were

summarized in the Crown Consultation Report, and therefore put before the Governor in Council

so it could assess the adequacy of consultation. Elements that were summarized include Trans

Mountain’s Aboriginal Engagement Program and the Mutual Benefit Agreements Trans

Mountain entered into with Indigenous groups. Trans Mountain’s Aboriginal Engagement

Program was noted to have provided approximately $12 million in capacity funding to

potentially affected groups. As well, Trans Mountain provided funding to conduct traditional

land and resource use and traditional marine resource use studies. As for the Mutual Benefit

Agreements, as of November 2016, Canada was aware that 33 potentially affected Indigenous

groups had signed such agreements with Trans Mountain. These included a letter of support for

the Project.

Page: 55

[161] Canada’s reliance on Trans Mountain’s engagement also makes evidence about that

engagement relevant.

[162] Finally on this point, some Indigenous applicants assert that Trans Mountain’s

engagement efforts were inadequate. Evidence of Trans Mountain’s engagement, including its

provision of capacity funding, is relevant to this allegation and to the issue of the adequacy of

available funding.

3.

Canada’s compendium—The Consultation Chronologies

[163] In its compendium, Canada included schedules in the form of charts (referred to as

“Consultation Chronologies”) which describe events said to have taken place. The Indigenous

applicants assert that the schedules are interpretive, inaccurate, and incomplete and that they

should not be received by the Court for two reasons.

[164] First, the Indigenous applicants argue that the Consultation Chronologies summarize the

facts as perceived by the Crown. As such, the material should have appeared in Canada’s

affidavit and in its memorandum of fact and law. It is argued that Canada should not be

permitted to circumvent page length restrictions on the length of its memorandum by creating

additional resources in its compendium.

[165] Second, the Indigenous applicants argue that the Consultation Chronologies are not

evidence. Instead, the summaries are newly created documents that were not before the Board or

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the Governor in Council. Their admission is also argued to be prejudicial to the Indigenous

applicants.

[166] Canada responds that, as the case management Judge noted in his direction of September

7, 2017, “parties often include material in their compendia as an aid to argument. As long as the

aid to argument is brief and helpful and is not anything resembling a memorandum of fact and

law and as long as the aid to argument presents or is based entirely upon facts and data from the

evidentiary record without adding to it, hearing panels of this Court usually permit it. Of course,

there is a limit to this.”

[167] I agree with the Indigenous applicants that the Consultation Chronologies must be

approached with caution. For example, the Consultation Chronology in respect of the Coldwater

Indian Band recites that on May 3, 2016, Canada emailed Coldwater a letter dated November 3,

2015 sent in response to Coldwater’s letter of August 20, 2015. The Consultation Chronology

also recites that the letter contained an offer to meet with Coldwater to discuss the consultation

process and Project-related issues. However, Coldwater points to the sworn evidence of its Chief

Councillor to the effect that the November 3, 2015 letter did not actually address the concerns

detailed in Coldwater’s letter of August 20, 2015, and that the meeting was never arranged

because the November 3, 2015 letter was not provided to Coldwater until May 3, 2016.

[168] Thus, I well understand the concern of the Indigenous applicants. This said, this Court’s

understanding of the evidence is not based upon a summary in chart form which briefly

summarizes the consultation process. The Court will base its decision upon the evidentiary

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record properly before it, which includes the record before the Board and the Governor in

Council, the affidavits sworn in this proceeding, the cross-examinations thereon, the statement of

agreed facts, and the contents of the agreed book of documents. The sole permissible use of the

Consultation Chronologies is as a form of table of contents or finding aid that directs a reader to

a particular document in the record. On the basis of this explanation of the limited permissible

use of the Consultation Chronologies there is no need to strike them, a point conceded by

counsel for Coldwater and Squamish in oral argument.

[169] For completeness, I note that Upper Nicola moved on a preliminary basis to strike

portions of the second Love affidavit on the ground that the affidavit impermissibly recited

confidential information. That motion is the subject of brief, confidential reasons issued

contemporaneously with these reasons. After the parties to the motion have the opportunity to

make submissions, a public version of the confidential reasons will issue.

B.

Is the report of the National Energy Board amenable to judicial review?

[170] While I would dismiss Trans Mountain’s motion to strike the application on a

preliminary basis, because some applicants do challenge the report of the National Energy Board

it is necessary to decide whether judicial review lies, notwithstanding this Court’s conclusion to

the contrary in Gitxaala.

[171] The applicants who argue that, contrary to Gitxaala, the Board’s report is amenable to

judicial review acknowledge the jurisprudence of this Court to the effect that the test applied for

overruling a decision of another panel of this Court is whether the previous decision is

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“manifestly wrong” in the narrow sense that the Court overlooked a relevant statutory provision,

or a case that ought to have been followed: see, for example, Miller v. Canada (Attorney

General), 2002 FCA 370, 220 D.L.R. (4th) 149, at paragraph 10. The applicants argue that

Gitxaala was manifestly wrong in deciding that the Board’s report was not justiciable. The

specific errors asserted are:

a.

Gitxaala was manifestly wrong in holding that only “decisions about legal or

practical interests are judicially reviewable”. The Court did not address case law

that has interpreted subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c.

F-7 more broadly.

b.

c.

The Court failed to deal with the prior decision of this Court in Forestethics

Advocacy v. Canada (Attorney General), 2014 FCA 71, 390 D.L.R. (4th) 376.

The Court failed to deal with prior jurisprudence of the Federal Court and this

Court which did review environmental assessment reports prepared by a joint

review panel.

d.

e.

The Court referred to provisions of the Canadian Environmental Assessment Act,

2012 that were inapplicable.

The Gitxaala decision impermissibly thwarts the right to seek judicial review of

the decision of the National Energy Board.

[172] I will deal with each argument in turn after first reviewing this Court’s analysis in

Gitxaala.

1.

The decision of this Court in Gitxaala

[173] The Court’s consideration of the justiciability of the report of the Joint Review Panel

began with its detailed analysis of the legislative scheme (reasons, paragraphs 99 to 118). The

Court then turned to consider the proper characterization of the legislative scheme, which the

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Court described to be “a complete code for decision-making regarding certificate applications.”

The Court then reasoned:

[120] The legislative scheme shows that for the purposes of review the only

meaningful decision-maker is the Governor in Council.

[121] Before the Governor in Council decides, others assemble information,

analyze, assess and study it, and prepare a report that makes recommendations for

the Governor in Council to review and decide upon. In this scheme, no one but

the Governor in Council decides anything.

[122] In particular, the environmental assessment under the Canadian

Environmental Assessment Act, 2012 plays no role other than assisting in the

development of recommendations submitted to the Governor in Council so it can

consider the content of any decision statement and whether, overall, it should

direct that a certificate approving the project be issued.

[123] This is a different role—a much attenuated role—from the role played by

environmental assessments under other federal decision-making regimes. It is not

for us to opine on the appropriateness of the policy expressed and implemented in

this legislative scheme. Rather, we are to read legislation as it is written.

[124] Under this legislative scheme, the Governor in Council alone is to

determine whether the process of assembling, analyzing, assessing and studying is

so deficient that the report submitted does not qualify as a “report” within the

meaning of the legislation:



In the case of the report or portion of the report setting out

the environmental assessment, subsection 29(3) of the

Canadian Environmental Assessment Act, 2012 provides

that it is “final and conclusive,” but this is “[s]ubject to

sections 30 and 31.” Sections 30 and 31 provide for review

of the report by the Governor in Council and, if the

Governor in Council so directs, reconsideration and

submission of a reconsideration report by the Governor in

Council.



In the case of the report under section 52 of the National

Energy Board Act, subsection 52(11) of the National

Energy Board Act provides that it too is “final and

conclusive,” but this is “[s]ubject to sections 53 and 54.”

These sections empower the Governor in Council to

consider the report and decide what to do with it.

[125] In the matter before us, several parties brought applications for judicial

review against the Report of the Joint Review Panel. Within this legislative

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scheme, those applications for judicial review did not lie. No decisions about legal

or practical interests had been made. Under this legislative scheme, as set out

above, any deficiency in the Report of the Joint Review Panel was to be

considered only by the Governor in Council, not this Court. It follows that these

applications for judicial review should be dismissed.

[126] Under this legislative scheme, the National Energy Board also does not

really decide anything, except in a formal sense. After the Governor in Council

decides that a proposed project should be approved, it directs the National Energy

Board to issue a certificate, with or without a decision statement. The National

Energy Board does not have an independent discretion to exercise or an

independent decision to make after the Governor in Council has decided the

matter. It simply does what the Governor in Council has directed in its Order in

Council.

(underlining added)

[174] Having reviewed Gitxaala, I now turn to the asserted errors.

2.

Was Gitxaala wrongly decided on this point?

(a)

Did the Court err by stating that only “decisions about legal or

practical interests” are judicially reviewable?

[175] Subsection 18.1(1) of the Federal Courts Act provides that an application for judicial

review may be made by “anyone directly affected by the matter in respect of which relief is

sought” (underlining added). In Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3

F.C.R. 605, this Court considered the scope of subsection 18.1(1) as follows:

[24] Subsection 18.1(1) of the Federal Courts Act provides that an application

for judicial review may be made by the Attorney General of Canada or by anyone

directly affected by “the matter in respect of which relief is sought.” A “matter”

that can be subject of judicial review includes not only a “decision or order,” but

any matter in respect of which a remedy may be available under section 18 of the

Federal Courts Act: Krause v. Canada, [1999] 2 F.C. 476 (C.A.). Subsection

18.1(3) sheds further light on this, referring to relief for an “act or thing,” a

failure, refusal or delay to do an “act or thing,” a “decision,” an “order” and a

“proceeding.” Finally, the rules that govern applications for judicial review apply

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to “applications for judicial review of administrative action,” not just applications

for judicial review of “decisions or orders”: Rule 300 of the Federal Courts Rules.

…

[28] The jurisprudence recognizes many situations where, by its nature or

substance, an administrative body’s conduct does not trigger rights to bring a

judicial review.

[29] One such situation is where the conduct attacked in an application for

judicial review fails to affect legal rights, impose legal obligations, or cause

prejudicial effects: Irving Shipbuilding Inc. v. Canada (Attorney General), 2009

FCA 116, [2010] 2 F.C.R. 488; Democracy Watch v. Conflict of Interest and

Ethics Commission, 2009 FCA 15, (2009), 86 Admin. L.R. (4th) 149.

(underlining added)

[176] To similar effect, in Democracy Watch v. Conflict of Interest and Ethics Commissioner,

2009 FCA 15, 387 N.R. 365, the Court wrote, at paragraph 10, that when “administrative action

does not affect an applicant’s rights or carry legal consequences, it is not amenable to judicial

review”.

[177] On the basis of these authorities the City of Vancouver, supported by the City of Burnaby

and Raincoast and Living Oceans, argues that this Court erred by writing in paragraph 125 in

Gitxaala that only “decisions about legal or practical interests” are reviewable. The Court is said

to have overlooked the established jurisprudence to the effect that “matter” as used in subsection

18.1(1) denotes a broader category than merely decisions.

[178] In my view, when the Court’s analysis in Gitxaala is read in its entirety no such

statement was made and no such error was made.

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[179] In Gitxaala, the Court found that the only action to carry legal consequences was the

decision of the Governor in Council. The environmental assessment conducted by the Joint

Review Panel under the Canadian Environmental Assessment Act, 2012 did not affect legal

rights or carry legal consequences. Instead, the assessment played “no role other than assisting in

the development of recommendations submitted to the Governor in Council” (reasons, paragraph

122). The same could be said of the balance of the report prepared pursuant to the requirements

of the National Energy Board Act.

[180] Put another way, on the basis of the legislative scheme enacted by Parliament, the report

of the Joint Review Panel constituted a set of recommendations to the Governor in Council that

lacked any independent legal or practical effect. It followed that judicial review did not lie from

it.

[181] Both the determination about the effect of the report of the Joint Review Panel and the

conclusion that it was not justiciable were wholly consistent with Air Canada and Democracy

Watch. It was therefore unnecessary for the Court to expressly deal with these decisions, or with

subsection 18.1(1).

[182] To complete this analysis, I note that the City of Vancouver also argues that it was

prejudiced because the report of the National Energy Board did not comply with section 19 of

the Canadian Environmental Assessment Act, 2012 and because the Board’s process was unfair.

However, any detrimental effects upon the City of Vancouver could have been remedied through

a challenge to the decision of the Governor in Council; the City has not asserted that it suffered

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any prejudice in the interval between the issuance of the Board’s report and the issuance of the

Order in Council by the Governor in Council.

(b)

Forestethics Advocacy v. Canada (Attorney General)

[183] In this decision, a single Judge of this Court decided whether this Court or the Federal

Court had jurisdiction to entertain applications for judicial review brought in respect of the

Report of the Joint Review Panel for the Enbridge Northern Gateway Project. Justice Sharlow

found jurisdiction to lie in this Court. The City of Vancouver argues that implicit in this decision

is the conclusion the reports prepared by joint review panels under the Canadian Environmental

Assessment Act, 2012 are judicially reviewable.

[184] I respectfully disagree. At issue in Forestethics was the proper interpretation of section

28 of the Federal Courts Act. The Court made no finding about whether the report is amenable to

judicial review—its only finding was that the propriety of the report (which would include

whether it was amenable to judicial review) was a matter for this Court, not the Federal Court.

(c)

The jurisprudence which reviewed environmental assessment

reports

[185] The City of Vancouver also points to jurisprudence in which environmental assessment

reports prepared by joint review panels were judicially reviewed, and argues that this Court erred

by failing to deal with this jurisprudence. The authorities relied upon by Vancouver are: Alberta

Wilderness Assn. v. Cardinal River Coals Ltd., [1999] 3 F.C. 425, 15 Admin. L.R. (3d) 25,

(F.C.); Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000]

Page: 64

2 F.C.R. 263, (1999), 169 F.T.R. 298 (C.A.); Pembina Institute for Appropriate Development v.

Canada (Attorney General), 2008 FC 302, 80 Admin. L.R. (4th) 74; Grand Riverkeeper,

Labrador Inc. v. Canada (Attorney General), 2012 FC 1520, 422 F.T.R. 299; and, Greenpeace

Canada v. Canada (Attorney General), 2014 FC 463, 455 F.T.R. 1, rev’d on appeal, 2015 FCA

186, 475 N.R. 247.

[186] All of these authorities predate Gitxaala. They do not deal with the “complete code” of

legislation that was before the Court in Gitxaala. But, more importantly, in none of these

decisions was the availability of judicial review put in issue—this availability was assumed. In

Gitxaala the Court reviewed the legislative scheme and explained why the report of the Joint

Review Panel was not justiciable. The Court did not err by failing to refer to case law that had

not considered this issue.

(d)

The reference to inapplicable provisions of the Canadian

Environmental Assessment Act, 2012

[187] The City of Vancouver also argues that Gitxaala is distinguishable because it dealt with

section 38 of the Canadian Environmental Assessment Act, 2012, a provision that has no

application to the process at issue here. The City also notes that Gitxaala, at paragraph 124,

referred to sections 30 and 31 of the Canadian Environmental Assessment Act, 2012. These

sections are said not to apply to the Joint Review Panel at issue in Gitxaala.

[188] I accept that pursuant to subsection 126(1) of the Canadian Environmental Assessment

Act, 2012 the environmental assessment of the Northern Gateway project (at issue in Gitxaala)

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was continued under the process established under the Canadian Environmental Assessment Act,

2012. Subsection 126(1) specified that such continuation was to be as if the assessment had been

referred to a review panel under section 38 of the Canadian Environmental Assessment Act,

2012, and that the Joint Review Panel which continued the environmental assessment was

considered to have been established under section 40 of the Canadian Environmental Assessment

Act, 2012.

[189] It followed that sections 29 through 31 of the Canadian Environmental Assessment Act,

2012 did not apply to the Northern Gateway project, and ought not to have been referenced by

the Court in Gitxaala in its analysis of the legislative scheme.

[190] This said, the question that arises is whether these references were material to the Court’s

analysis. To assess the materiality, if any, of this error I begin by reviewing the content of the

provisions said to be erroneously referred to in Gitxaala.

[191] Section 29 of the Canadian Environmental Assessment Act, 2012, discussed above at

paragraph 62, requires a responsible authority to ensure that its environmental assessment report

sets out its recommendation to the Governor in Council concerning the decision the Governor in

Council must make under paragraph 31(1)(a) of the Canadian Environmental Assessment Act,

2012. Section 30 allows the Governor in Council to refer any recommendation made by a

responsible authority back to the responsible authority for reconsideration. Section 31 sets out

the options available to the Governor in Council after it receives a report from a responsible

authority. Paragraph 31(1)(a), discussed at paragraph 67 above, sets out the three choices

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available to the Governor in Council with respect to its assessment of the likelihood that a project

will cause significant adverse environmental effects and, if so, whether such effects can be

justified.

[192] These provisions, without doubt, do apply to the Project at issue in these proceedings.

Therefore, the Project is to be assessed under the legislative scheme analyzed in Gitxaala. It

follows that Gitxaala cannot be meaningfully distinguished.

[193] As to the effect, if any, of the erroneous references in Gitxaala, the statutory framework

applicable to the Northern Gateway project originated in three sources: the National Energy

Board Act; the Canadian Environmental Assessment Act, 2012; and, transitional provisions

found in section 104 of the Jobs, Growth and Long-Term Prosperity Act, S.C. 2012, c.19 (Jobs

Act).

[194] Provisions relevant to the present analysis are:



subsection 104(3) of the Jobs Act which required the Joint Review Panel to set

out in its report an environmental assessment prepared under the Canadian

Environmental Assessment Act, 2012;

subsection 126(1) of the Canadian Environmental Assessment Act, 2012 which

continued the environmental assessment under the process established under that

Act; and,

paragraph 104(4)(a) of the Jobs Act which made the Governor in Council the

decision-maker under section 52 of the Canadian Environmental Assessment Act,

2012 (thus, it was for the Governor in Council to determine if the Project was

likely to cause significant adverse environmental effects and, if so, whether such

effects could be justified).

Page: 67

[195] These provisions are to the same effect as sections 29 and 31 of the Canadian

Environmental Assessment Act, 2012. I dismiss the relevance of section 30 to this analysis

because it had no application to the environmental assessment under review in Gitxaala. Further,

and more importantly, section 30 played no significant role in the Court’s analysis.

[196] It follows that the analysis in Gitxaala was based upon a proper understanding of the

legislative scheme, notwithstanding the Court’s reference to sections 29 and 31 of the Canadian

Environmental Assessment Act, 2012 instead of the applicable provisions.

[197] Put another way, the error was in no way material to the Court’s analysis of the

respective roles of the Joint Review Panel, which prepared the report to the Governor in Council,

and the Governor in Council, which received the panel’s recommendations and made the

decisions required under the legislative scheme.

[198] Indeed, the technical nature of the erroneous references was acknowledged by Raincoast

in its application for leave to appeal the Gitxaala decision to the Supreme Court of Canada. At

paragraph 49 of its memorandum of argument it described the Court’s error to be “technical in

nature” (Trans Mountain’s Compendium, volume 2, tab 35). To the same effect, Vancouver does

not argue that the Court’s error was material to its analysis. Vancouver simply notes the error in

footnote 118 of its memorandum of fact and law.

[199] Accordingly, I see no error in the Gitxaala decision that merits departing from its

analysis.

Page: 68

(e)

Gitxaala thwarts review of the decision of the National Energy

Board

[200] Finally, Vancouver argues that subsection 54(1) of the National Energy Board Act and

31(1) of the Canadian Environmental Assessment Act, 2012 both make the Board’s report a

prerequisite to the decision of the Governor in Council. As the Governor in Council is not an

adjudicative body, meaningful review must come in the form of judicial review of the report of

the Board. The decision in Gitxaala thwarts such review.

[201] I respectfully disagree. As this Court noted in Gitxaala at paragraph 125, the Governor in

Council is required to consider any deficiency in the report submitted to it. The decision of the

Governor in Council is then subject to review by this Court under section 55 of the National

Energy Board Act. The Court must be satisfied that the decision of the Governor in Council is

lawful, reasonable and constitutionally valid. If the decision of the Governor in Council is based

upon a materially flawed report the decision may be set aside on that basis. Put another way,

under the legislation the Governor in Council can act only if it has a “report” before it; a

materially deficient report, such as one that falls short of legislative standards, is not such a

report. In this context the Board’s report may be reviewed to ensure that it was a “report” that the

Governor in Council could rely upon. The report is not immune from review by this Court and

the Supreme Court.

Page: 69

(f)

Conclusion on whether the report of the National Energy Board is

amenable to judicial review

[202] For these reasons, I have concluded that the report of the National Energy Board is not

justiciable. It follows that I would dismiss the six applications for judicial review which

challenge that report. In the circumstance where the arguments about justiciability played a small

part in the hearing I would not award costs in respect of these six applications.

[203] As the City of Vancouver did not seek and obtain leave to challenge the Order in

Council, it follows that the City is precluded from challenging the Order in Council.

C.

Should the decision of the Governor in Council be set aside on administrative law

grounds?

1.

The standard of review to be applied to the decision of the Governor in

Council

[204] In Gitxaala, when considering the standard of review to be applied to the decision of the

Governor in Council, the Court wrote that it was not legally permissible to adopt a “one-size-fits-

all” approach to any particular administrative decision-maker. Rather, the standard of review

must be assessed in light of the relevant legislative provisions, the structure of the legislation and

the overall purpose of the legislation (Gitxaala, paragraph 137).

[205] I agree. Particularly in the present case it is necessary to draw a distinction between the

standard of review applied to what I will refer to as the administrative law components of the

Governor in Council’s decision and that applied to the constitutional component which required

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the Governor in Council to consider the adequacy of the process of consultation and, if

necessary, accommodation. This is an approach accepted and urged by the parties.

(a)

The administrative law components of the decision

[206] In Gitxaala, the Court conducted a lengthy standard of review analysis (Gitxaala,

paragraphs 128-155) and concluded that, because the Governor in Council’s decision was a

discretionary decision founded on the widest considerations of policy and public interest, the

standard of review was reasonableness (Gitxaala, paragraph 145).

[207] Canada, Trans Mountain and the Attorney General of Alberta submit that Gitxaala was

correctly decided on this point.

[208] Tsleil-Waututh, Raincoast and Living Oceans submit that the governing authority is not

Gitxaala, but rather is the earlier decision of this Court in Council of the Innu of Ekuanitshit v.

Canada (Attorney General), 2014 FCA 189, 376 D.L.R. (4th) 348. In this case the Court found

the reasonableness standard of review applied to a decision of the Governor in Council

approving the federal government’s response to a report of a joint review panel prepared under

the now repealed Canadian Environmental Assessment Act, S.C. 1992, c. 37 (Canadian

Environmental Assessment Act, 1992). The Court rejected the submission that the correctness

standard applied to the question of whether the Governor in Council and the responsible

authorities had respected the requirements of the Canadian Environmental Assessment Act, 1992

before making their decisions under subsections 37(1) and 37(1.1) of that Act. Under these

provisions the Governor in Council and the responsible authorities were required to review the

Page: 71

report of the joint review panel and determine whether the project at issue was justified despite

its adverse environmental effects.

[209] This said, while deference was owed to decisions made pursuant to subsections 37(1) and

37(1.1), the Court wrote that “a reviewing court must ensure that the exercise of power delegated

by Parliament remains within the bounds established by the statutory scheme.” (Innu of

Ekuanitshit, paragraph 44).

[210] To the submission that Innu of Ekuanitshit is the governing authority, Tsleil-Waututh

adds two additional points: first and, in any event, the “margin of appreciation” approach

followed in Gitxaala is no longer good law; and, second, issues of procedural fairness are to be

reviewed on the standard of correctness. Tsleil-Waututh’s additional submissions are adopted by

the City of Burnaby.

[211] I see no inconsistency between the Innu of Ekuanitshit and Gitxaala for the following

reasons.

[212] First, the Court in Gitxaala acknowledged that it was bound by Innu of Ekuanitshit.

However, because of the very different legislative scheme at issue in Gitxaala, the earlier

decision did not satisfactorily determine the standard of review to be applied to the decision of

the Governor in Council at issue in Gitxaala (Gitxaala, paragraph 136). This Court did not doubt

the correctness of Innu of Ekuanitshit or purport to overturn it.

Page: 72

[213] Second, in each case the Court determined the standard of review to be applied to the

decision of the Governor in Council was reasonableness. It was within the reasonableness

standard that the Court found in Innu of Ekuanitshit that the Governor in Council’s decision must

still be made within the bounds of the statutory scheme.

[214] Third, and finally, the conclusion in Innu of Ekuanitshit that a reviewing court must

ensure that the Governor in Council’s decision was exercised “within the bounds established by

the statutory scheme” (Innu of Ekuanitshit, paragraph 44) is consistent with the requirement in

Gitxaala that the Governor in Council must determine and be satisfied that the Board’s process

and assessment complied with the legislative requirements, so that the Board’s report qualified as

a proper prerequisite to the decision of the Governor in Council. Then, it is for this Court to be

satisfied that the decision of the Governor in Council was lawful, reasonable and constitutionally

valid. To be lawful and reasonable the Governor in Council must comply with the purview and

rationale of the legislative scheme.

[215] Reasonableness review requires a court to assess whether the decision under review falls

within a range of possible, acceptable outcomes which are defensible on the facts and the law

(Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 47).

[216] Reasonableness review is a contextual inquiry. Reasonableness “takes its colour from the

context” (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at

paragraph 59; Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80,

at paragraph 57); in every case the fundamental question “is the scope of decision-making power

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conferred on the decision-maker by the governing legislation.” (Catalyst Paper Corp. v. North

Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at paragraph 18).

[217] Thus, when a court reviews a decision made in the exercise of a statutory power,

reasonableness review requires the decision to have been made in accordance with the terms of

the statute: see, for example, Globalive Wireless Management Corp. v. Public Mobile Inc., 2011

FCA 194, [2011] 3 F.C.R. 344, at paragraphs 29-30. Put another way, an administrative

decision-maker is constrained in the outcomes it may reach by the statutory wording (Canada

(Attorney General) v. Almon Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203, at

paragraph 21).

[218] The Supreme Court recently considered this in the context of a review of a decision of the

Specific Claims Tribunal. The Tribunal is required by its governing legislation to adjudicate

specific claims “in accordance with law and in a just and timely manner.” The majority of the

Court observed that the Tribunal’s mandate expressly tethered “the scope of its decision-making

power to the applicable legal principles.” and went on to note that the “range of reasonable

outcomes available to the Tribunal is therefore constrained by these principles” (Williams Lake

Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, 417

D.L.R. (4th) 239, at paragraphs 33-34).

[219] With respect to Tsleil-Wauthuth’s two additional points, I believe the first point was

addressed above. Reasonableness “takes its colour from the context.” To illustrate,

reasonableness review of a policy decision affecting many entities is of a different nature than

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reasonableness review of, say, a decision on the credibility of evidence before an adjudication

tribunal.

[220] The second point raises the question of the standard of review to be applied to questions

of procedural fairness.

[221] As this Court noted in Bergeron v. Canada (Attorney General), 2015 FCA 160, 474 N.R.

366, at paragraph 67, the standard of review for questions of procedural fairness is currently

unsettled.

[222] As Trans Mountain submits, in cases such as Forest Ethics Advocacy Association v.

Canada (National Energy Board), 2014 FCA 245, [2015] 4 F.C.R. 75, at paragraphs 70-72, this

Court has applied the standard of correctness with some deference to the decision-maker’s

choice of procedure (see also Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at

paragraphs 79 and 89).

[223] This said, in my view it is not necessary to resolve any inconsistency in the jurisprudence

because, as will be explained below, even on a correctness review I find there is no basis to set

aside the Order in Council on the basis of procedural fairness concerns.

(b)

The constitutional component

[224] As explained above, a distinction exists between the standard of review applied to the

administrative law components of the Governor in Council’s decision and the standard applied to

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the component which required the Governor in Council to consider the adequacy of the process

of consultation with Indigenous peoples, and if necessary, accommodation.

[225] Citing Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3

S.C.R. 511, at paragraphs 61-63, the parties agree that the existence and extent of the duty to

consult are legal questions reviewable on the standard of correctness. The adequacy of the

consultation is a question of mixed fact and law which is reviewable on the standard of

reasonableness. I agree.

[226] Reasonableness review does not require perfect satisfaction (Gitxaala, paragraphs 182-

183 and the cases cited therein). The question to be answered is whether the government action

“viewed as a whole, accommodates the collective aboriginal right in question”. Thus, “[s]o long

as every reasonable effort is made to inform and to consult, such efforts would suffice.” (Haida

Nation, paragraph 62, citing R. v. Gladstone, [1996] 2 S.C.R. 723 and R. v. Nikal, [1996] 1

S.C.R. 1013). The focus of the analysis should not be on the outcome, but rather on the process

of consultation and accommodation (Haida Nation, paragraph 63).

[227] Having set out the governing standards of review, I next consider the various flaws that

are said to vitiate the decision of the Governor in Council.

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Did the Governor in Council err in determining that the Board’s report

2.

qualified as a report so as to be a proper condition precedent to the

Governor in Council’s decision?

[228] The Board’s errors said to vitiate the decision of the Governor in Council were briefly

summarized above at paragraph 128. For ease of reference I reorganize and repeat that the

applicants variously assert that the Board erred by:

a.

b.

c.

d.

breaching the requirements of procedural fairness;

failing to decide certain issues before it recommended approval of the Project;

failing to consider alternatives to the Westridge Marine Terminal;

failing to assess Project-related marine shipping under the Canadian

Environmental Assessment Act, 2012; and,

e.

erring in its treatment of the Species at Risk Act.

The effect of each of these errors is said to render the Board’s report materially deficient such

that it was not a “report” that the Governor in Council could rely upon. A decision made by the

Governor in Council without a “report” before it must be unreasonable; the statute makes it clear

that the Governor in Council can only reach a decision when informed by a “report” of the

Board.

[229] I now turn to consider each alleged deficiency.

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(a)

Was the Board’s process procedurally fair?

(i)

Applicable legal principles

[230] The Board, as a public authority that makes administrative decisions that affect the rights,

privileges or interests of individuals, owes a duty of procedural fairness to the parties before it.

However, the existence of a duty of fairness does not determine what fairness requires in a

particular circumstance.

[231] It is said that the concept of procedural fairness is eminently variable, and that its content

is to be decided in the context and circumstances of each case. The concept is animated by the

desire to ensure fair play. The purpose of the participatory rights contained within the duty of

fairness has been described to be:

… to ensure that administrative decisions are made using a fair and open

procedure, appropriate to the decision being made and its statutory, institutional,

and social context, with an opportunity for those affected by the decision to put

forward their views and evidence fully and have them considered by the decision-

maker.

(Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R.

(4th) 193, at paragraph 22).

[232] In Baker, the Supreme Court articulated a non-exhaustive list of factors to be considered

when determining what procedural fairness requires in a given set of circumstances: the nature of

the decision being made and the process followed in making it; the nature of the statutory

scheme, including the existence of an appeal procedure; the importance of the decision to the

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lives of those affected; the legitimate expectations of the person challenging the decision; and,

the choice of procedures made by the decision-maker.

[233] Applying these factors, the City of Burnaby argues that the content of the procedural duty

owed to it was significant.

[234] Other applicants and the respondents did not make submissions on the content of the

procedural duty of fairness.

[235] Having regard to the adjudicative nature of the decision at issue, the court-like procedures

prescribed by the National Energy Board Rules of Practice and Procedure, 1995, SOR/95-208,

the absence of an unrestricted statutory right of appeal (subsection 22(1) of the National Energy

Board Act permits an appeal on a question of law or jurisdiction only with leave of this Court)

and the importance of the Board’s decision to the parties, I accept Burnaby’s submission that the

content of the duty of fairness owed by the Board to the parties was significant. The parties were

entitled to a meaningful opportunity to present their cases fully and fairly. Included in the right to

present a case fully is the right to effectively challenge evidence that contradicts that case. I will

consider below more precisely the content of this duty.

[236] Having briefly summarized the legal principles that apply to issues of procedural fairness,

I next enumerate the assertions of procedural unfairness.

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(ii)

The asserted breaches of procedural fairness

[237] The City of Burnaby asserts that the Board breached a duty of fairness owed to it by:

a.

b.

failing to hold an oral hearing;

failing to provide Burnaby with an opportunity to test Trans Mountain’s evidence

by cross-examination;

c.

failing to require Trans Mountain to respond to Burnaby’s written Information

Requests and denying Burnaby’s motions to compel further and better responses

to the Information Requests;

d.

e.

delegating the assessment of critically important information until after the

Board’s report and the Governor in Council’s decision;

failing to provide sufficient reasons concerning:

i.

alternative means of carrying out the Project;

ii.

iii.

iv.

v.

the risks, including seismic risk, related to fire and spills;

the suitability of the Burnaby Mountain Tunnel;

the protection of municipal water sources; and,

whether, and on what basis, the Project is in the public interest.

[238] Tsleil-Waututh submits that the Board breached the duty of fairness by restricting its

ability to test Trans Mountain’s evidence and by permitting Trans Mountain to file improper

reply evidence.

[239] The Stó:lō submit that it was procedurally unfair to subject their witnesses who gave oral

traditional Indigenous evidence to cross-examination when Trans Mountain’s witnesses were not

cross-examined.

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[240] Squamish briefly raised the issue of inadequate response to their Information Request to

Natural Resources Canada, and the Board’s terse rejection of their requests for further and better

responses from Natural Resources Canada, the Department of Fisheries and Oceans and Trans

Mountain.

[241] Each assertion will be considered.

(iii) The failure to hold a full oral hearing and to allow cross-

examination of Trans Mountain’s witnesses

[242] It is convenient to deal with these two asserted errors together.

[243] The applicants argue that the Board’s decision precluding oral cross-examination was “a

stark departure from the previous practice for a project of this scale.” (Burnaby’s memorandum

of fact and law, paragraph 160) that deprived the Board of an important and established method

for determining the truth. The applicants argue that this was particularly unfair because Trans

Mountain failed to participate in good faith in the Information Request process with the result

that the process did not provide an effective, alternative method to test Trans Mountain’s

evidence.

[244] The respondents Canada and Trans Mountain answer that:



The Board has discretion to determine whether a hearing proceeds as a written or

oral hearing, and the Board is entitled to deference with respect to its choice of

procedure.

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The process was tailored to take into account the number of participants, the



volume of evidence and the technical nature of the information to be received by

the Board.

Many aspects of the hearing were conducted orally: the oral Indigenous

traditional evidence, Trans Mountain’s oral summary argument, the interveners’

oral summary arguments and any reply arguments.

Cross-examination is never an absolute right. A decision-maker may refuse or

limit cross-examination so long as there is an effective means to challenge and

test evidence.

[245] I acknowledge the importance of cross-examination at common law. However, because

the content of the duty of fairness varies according to context and circumstances, the duty of

fairness does not always require the right of cross-examination. For example, in a multi-party

public hearing related to the public interest, fairness was held not to require oral cross-

examination (Unicity Taxi Ltd. v. Manitoba Taxicab Board (1992), 80 Man. R. (2d) 241, [1992]

6 W.W.R. 35 (Q.B.); aff’d (1992) 83 Man. R. (2d) 305, [1992] M.J. No. 608 (C.A.)). The Court

dismissed the allegation of unfairness because “in the conduct of multi-faceted and multi-party

public hearings [cross-examination] tends to become an unwieldy and even dangerous weapon

that may lead to disturbance, disruption and delay.”

[246] Similarly, in Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017

SCC 41, [2017] 1 S.C.R. 1099, the Supreme Court found that the Chippewas of the Thames were

given an adequate opportunity to participate in the decision-making process of the Board

(reasons, paragraph 51). This finding was supported by the Court’s enumeration of the following

facts: the Board held an oral hearing; provided early notice of the hearing process to affected

Indigenous groups and sought their formal participation; granted intervener status to the

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Chippewas of the Thames; provided participant funding to allow the Chippewas of the Thames

to tender evidence and pose formal Information Requests to the project proponent, to which they

received written responses; and permitted the Chippewas of the Thames to make oral closing

submissions. No right of oral cross-examination was granted (reasons, paragraph 52), yet the

process provided an adequate right to participate.

[247] These decisions are of course not determinative of the requirements of fairness in the

present context.

[248] The relevant context is discussed by the Board in its Ruling No. 14, which dealt with a

motion requesting that the hearing order be amended to include a phase for oral cross-

examination of witnesses. After quoting an administrative law text to the effect that procedural

fairness is not a fixed concept, but rather is one that varies with the context and the interest at

stake, the Board wrote:

Here, the context is that the Board will be making a recommendation to the

Governor in Council. The recommendation will take into account whether the

pipeline is and will be required by the present and future public convenience and

necessity. The Board’s recommendation will be polycentric in nature as it

involves a wide variety of considerations and interests. Persons directly affected

by the Application include Aboriginal communities, land owners, governments,

commercial interests, and other stakeholders. The motion and several of the

comments in support of it appear to place significant reliance on the potential

credibility of witnesses. The Board notes that this is not a criminal or civil trial.

The Board’s hearing also does not involve an issue of individual liberty. It is a

process for gathering and testing evidence for the Board’s preparation, as an

expert tribunal, of its recommendation to the Governor in Council about whether

to issue a certificate under section 52 of the NEB Act. The Board will also be

conducting an environmental assessment and making a recommendation under

CEAA 2012.

Hearing processes are designed individually and independently by the Board

based on the specific circumstances of the application. Each process is designed

to provide for a fair hearing, but the processes are not necessarily the same. For

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this Application, the Hearing Order provides two opportunities to ask written

information requests. There is also an opportunity to file written evidence, and to

provide both written and oral final argument. For Aboriginal groups that also wish

to present Aboriginal traditional evidence orally, there is an opportunity to do this.

Regarding the nature of the statutory scheme, section 8 of the NEB Act authorizes

the Board to make rules about the conduct of hearings before the Board. The

Rules provide that public hearings may be oral or written, as determined by the

Board. The Board has previously held fully written hearings for section 52 oil and

gas pipeline applications. Hearings can also be oral, with significant written

components, as is the case here. In addition to the hearing procedures set out in

the Rules, the Board makes rules about hearing procedures in its Hearing Order

and associated rulings and bulletins.

….

Additional legislative requirements for the Board’s public hearings are found in

subsection 11(4) of the NEB Act, which requires that applications before the

Board are to be dealt with as expeditiously as the circumstances and

considerations of fairness permit, and within the time limit provided. This

subsection of the NEB Act was added in 2012. For this Application, the legislated

time limit, which is 15 months after the completeness determination is made, is 2

July 2015.

As the legislative time limits are recent, there is no legitimate expectation as to

the hearing procedures that will be used to test the evidence. In this case, the

Board has provided notice about the procedures that will apply.

In the Board’s view, the legislation makes it clear that the Board is master of its

own procedure and can establish its own procedures for each public hearing with

regard to the conduct of hearings. This includes the authority to determine for a

particular public hearing the manner in which evidence will be received and

tested. In the circumstances of this hearing, where there are 400 intervenors and

much of the information is technical in nature, the Board has determined that it is

appropriate to test the evidence through written processes. All written evidence

submitted will be subject to written questioning by up to 400 parties, and the

Board.

(underlining added, footnotes omitted)

[249] Further aspects of the relevant context are discussed in the Board’s final report at page 4:

For the Board’s review of the Project application, the hearing had significant

written processes as well as oral components. With the exception of oral

traditional evidence described below, evidence was presented in writing, and

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testing of that evidence was carried out through written questions, known as

Information Requests (IRs). Intervenors submitted over 15,000 questions to Trans

Mountain over two major rounds of IRs. Hundreds of other questions were asked

in six additional rounds of IRs on specific evidence. If an intervenor believed that

Trans Mountain provided inadequate responses to its questions, it could ask the

Board to compel Trans Mountain to provide a more complete response. Trans

Mountain could do the same in respect of IRs it posed to intervenors on their

evidence. There was also written questioning on various additional evidence,

including supplemental, replacement, late and Trans Mountain’s reply evidence.

The Board decided, in its discretion in determining its hearing procedure, to allow

testing of evidence by IRs and determined that there would not be cross

examination in this hearing. The Board decided that, in the circumstances of this

hearing where there were 400 intervenors and legislated time limits, and taking

into consideration the technical nature of the information to be examined, it was

appropriate to test the evidence through written processes. In the final analysis,

the written evidence submitted was subjected to extensive written questioning by

up to 400 participants and the Board. The Board is satisfied that the evidence was

appropriately tested in its written process and that its hearing was fair for all

parties and met natural justice requirements. …

(underlining added, footnote omitted)

[250] Having set out the context relevant to determining the content of the duty of fairness, and

the Board’s discussion of the context, the next step is to apply the contextual factors enumerated

in Baker to determine whether the absence of oral cross-examination was inconsistent with the

participatory rights required by the duty of fairness. The heart of this inquiry is directed to

whether the parties had a meaningful opportunity to present their case fully and fairly.

[251] Applying the first Baker factor, the nature of the Board’s decision is different from a

judicial decision. The Board is required to apply its expertise to the record before it in order to

make recommendations about whether the Project is and will be required by public convenience

and necessity, and whether the Project is likely to cause significant adverse environmental effects

that can or cannot be justified in the circumstances. Each recommendation requires the Board to

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consider a broad spectrum of considerations and interests, many of which depend on the Board’s

discretion. For example, subsection 52(2) of the National Energy Board Act requires the Board’s

recommendation to be based on “all considerations that appear to it to be directly related to the

pipeline and to be relevant”. The Board’s environmental assessment is to take into account “any

other matter relevant to the environmental assessment that the [Board] requires to be taken into

account” (paragraph 19(1)(j) of the Canadian Environmental Assessment Act, 2012). The nature

of the decision points in favour of more relaxed requirements under the duty of fairness.

[252] The statutory scheme also points to more relaxed requirements. The Board may

determine that a pipeline application be dealt with wholly in writing (Rule 22(1), National

Energy Board Rules of Practice and Procedure, 1995). The Board is required to deal with

matters expeditiously, and within the legislated time limit. When the hearing order providing for

Information Requests, not oral cross-examination, was issued on April 2, 2014, the Board was

required to deliver its report by July 2, 2015. In legislating this time limit Parliament must be

presumed to have contemplated that pipeline approval projects could garner significant public

interest such that, as in this case, 400 parties successfully applied for leave to intervene. One

aspect of the statutory scheme does point to a higher duty of fairness: the legislation does not

provide for a right of appeal (save with leave on a question of law or jurisdiction). However, as

discussed at length above, the Board’s decision is subject to scrutiny in proceedings such as this.

[253] The importance of the decision is a factor that points toward a heightened fairness

requirement.

Page: 86

[254] For the reasons given by the Board, I do not see any basis for a legitimate expectation

that oral cross-examination would be permitted. To the Board’s reasons I would add that such an

expectation would be contrary to the Board’s right to determine that an application be reviewed

wholly in writing. While the Board did permit oral cross-examination in its review of the

Northern Gateway Pipeline, in that case the Board’s report discloses that intervener status was

granted to 206 entities—roughly half the number of entities given intervener status in this case.

[255] Finally, the Board’s choice of procedure, while not determinative, must be given some

respect, particularly where the legislation gives the Board broad leeway to choose its own

procedure, and the Board has experience in deciding appropriate hearing procedures.

[256] I note that when the Board rendered its decision on the request that it reconsider Ruling

No. 14 so as to allow oral cross-examination, the applicants had received Trans Mountain’s

responses to their first round of Information Requests; many had brought motions seeking fuller

and better answers. The Board ruled on the objections on September 26, 2014. Therefore, the

Board was well familiar with the applicants’ stated concerns, as is seen in Ruling No. 51 when it

declined to reconsider its earlier ruling refusing to amend the hearing order to allow oral cross-

examination.

[257] Overall, while the importance of the decision and the lack of a statutory appeal point to

stricter requirements under the duty of fairness, the other factors point to more relaxed

requirements. Balancing these factors, I conclude that the duty of fairness was significant.

Nevertheless, the duty of fairness was not breached by the Board’s decisions not to allow oral

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cross-examination and not to allow a full oral hearing. The Board’s procedure did allow the

applicants a meaningful opportunity to present their cases fully and fairly.

[258] Finally on this issue, the Board allowed oral traditional Indigenous evidence because

“Aboriginal people have an oral tradition that cannot always be shared adequately in writing.”

(Ruling No. 14, page 5). With respect to Stó:lō’s concerns about permitting oral questioning of

oral traditional evidence, the Board permitted “Aboriginal groups [to] choose to answer any

questions in writing or orally, whichever is practical or appropriate by their determination.”

(Ruling No. 14, page 5). This is a complete answer to the concerns of the Stó:lō.

[259] I now turn to the next asserted breach of procedural fairness.

(iv)

Trans Mountain’s responses to the Information Requests

[260] The City of Burnaby and Squamish argue that Trans Mountain provided generic,

incomplete answers to the Information Requests and the Board failed in its duty to compel

further and better responses.

[261] During the oral hearing before this Court Burnaby reviewed in detail: Burnaby’s first

Information Request questioning Trans Mountain about its consideration of alternatives to

expanding the pipeline, tank facilities and marine terminal in a major metropolitan area; Trans

Mountain’s response; the Board’s denial of Burnaby’s request for a fuller answer; Burnaby’s

second Information Request; Trans Mountain’s response; the Board’s denial of Burnaby’s

request for a fuller answer; the Board’s first Information Request to Trans Mountain questioning

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alternative means of carrying out the Project; Trans Mountain’s response; the Board’s second

Information Request; and, Trans Mountain’s response to the Board’s second Information

Request. Burnaby argues that Trans Mountain provided significantly more information to the

Board than it did to Burnaby, but the information Trans Mountain provided was still insufficient.

[262] Squamish made brief reference in oral argument to the Board’s failure to order fuller

answers about the Crown’s assessment of the strength of its claims to Aboriginal rights and title.

[263] As can be seen from Burnaby’s oral submission, it brought motions before the Board to

compel better answers in respect of both of Trans Mountain’s responses to Burnaby’s

Information Requests.

[264] I begin consideration of this issue by acknowledging that most, but not all, of Burnaby’s

requests for fuller answers were denied by the Board. However, procedural fairness does not

guarantee a completely successful outcome. The Board did order some further and better answers

in respect of each motion. Burnaby must prove more than just that the Board did not uphold all

of its objections.

[265] The Board’s reasons for declining to compel further answers are found in two of the

Board’s rulings: Ruling No. 33 (A4 C4 H7) in respect of the first round of Information Requests

directed to Trans Mountain by the interveners, and Ruling No. 63 (A4 K8 G4) in respect of the

second round of the interveners’ Information Requests. Each ruling was set out in the form of a

letter which attached an appendix. The appendix listed each question included in the motions to

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compel, organized by intervener, and provided “the primary reason” the motion to compel was

granted or denied. Each ruling also provided in the body of the decision “overall comments about

the motions and the Board’s decision”.

[266] The Board set out the test it applied when considering motions to compel in the following

terms:

…the Board looks at the relevance of the information sought, its significance, and

the reasonableness of the request. The Board balances these factors so as to satisfy

the purpose of the [Information Request] process, while preventing an intervenor

from engaging in a ‘fishing expedition’ that could unfairly burden the applicant.

[267] In its decision the Board also provided general information describing circumstances that

led it to decline to compel further answers. Of relevance are the following two situations:



In some instances, Trans Mountain provided a full answer to the question asked,

but the intervener disagreed with the answer. In these cases, rather than seeking to

compel a further answer, the Board advised the interveners to file their own

evidence in response or to provide their views during final argument.



In some cases, Trans Mountain may not have answered all parts of an intervener’s

Information Request. However, in those cases where the Board was of the view

that the response provided sufficient information and detail for the Board to

consider the application, the Board declined to compel a further response.

[268] It is clear that the Board viewed Burnaby’s requests for fuller answers about Trans

Mountain’s consideration and rejection of alternate locations for the marine terminal to fall

within the second situation described above.

Page: 90

[269] The Board’s second Information Request to Trans Mountain on this point was answered

by Trans Mountain on July 21, 2014, and its answer was served upon all of the interveners.

Therefore, the Board was aware of this response when on September 26, 2014, it rejected

Burnaby’s motion in Ruling No. 33.

[270] That the Board found Trans Mountain’s answer to its second Information Request to be

sufficient is reflected in the Board’s report, where at pages 241 to 242 the Board relied on the

content of Trans Mountain’s response to its second Information Request to articulate Trans

Mountain’s consideration of the alternatives to the Westridge Marine Terminal. At page 244 of

the report, the Board found Trans Mountain’s “alternative means assessment” to be appropriate.

The Board went on to acknowledge Burnaby’s concern that Trans Mountain had not provided an

assessment of the risks, impacts and effects of the alternate marine terminal locations at Kitimat

or Roberts Bank. However, the Board disagreed, finding that “Trans Mountain has provided an

adequate assessment, including consideration of the technical, socio-economic and

environmental effects, of technically and economically feasible alternative marine terminal

locations.”

[271] Obviously, Burnaby disagrees with this assessment. However, it has not demonstrated

how the Board’s conduct concerning Burnaby’s Information Requests breached the requirements

of procedural fairness. For example, Burnaby has not pointed to evidence that contradicted Trans

Mountain’s stated reasons for rejecting alternative marine terminal locations. Trans Mountain

stated that its assessment was based on feasibility of coincident marine and pipeline access, and

technical, economic and environmental considerations of the screened alternative locations. Any

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demonstrated conflict in the evidence on these points may have supported a finding that

meaningful participation required Trans Mountain to provide more detailed information.

[272] In support of its submission concerning procedural fairness Squamish pointed to a

question it directed to Natural Resources Canada. It asked whether that entity had “assessed the

strength of Squamish’s claim to aboriginal rights in the area of the proposed Project” and if so, to

provide “that assessment and any material upon which that assessment is based.”

[273] The response Squamish received to its Information Request was:

The Crown has conducted preliminary depth of consultation assessments for all

Aboriginal groups, including Squamish Nation, whose traditional territory

intersects with or is proximate to the proposed pipeline right of way, marine

terminal expansion and designated marine shipping lanes. (Depth of consultation

assessments consider both potential impacts to rights and the strength of claim to

rights.) The Crown’s depth of consultation assessment is iterative and is expected

to evolve as the [Board] review process unfolds and as Aboriginal groups submit

their evidence to the [Board] and engage in Phase III consultations with the

Crown. The Crown has assessed depth of consultation for the Squamish Nation as

“high.” This preliminary conclusion was filed into evidence [by the Major

Projects Management Office] on May 27, 2015.

The starting point for these assessments is to work with information the Crown

has in hand, but Squamish Nation is invited to provide information that they

believe could assist the Crown in understanding the nature and scope of their

rights.

(underlining added)

[274] Squamish objected to the Board that its request was only partly addressed, and requested

that Natural Resources Canada provide the material on which its assessment was based.

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[275] In reply to Squamish’s motion to compel a further answer, Natural Resources Canada

responded:

In the context of the current hearing process, it is the view of [the Major Projects

Management Office] that the further information and records sought by Squamish

Nation will not be of assistance to the Panel in fulfilling its mandate.

However, the Crown will communicate with the Squamish Nation in August 2015

to provide further information on Phase III Crown consultation and the Crown’s

approach to considering adverse impacts of the Project on potential or established

Aboriginal and treaty rights. This forthcoming correspondence will summarize the

Crown’s understanding of the strength of Squamish Nation’s claim for rights and

title.

[276] The Board denied Squamish’s request for a fuller answer on the primary ground that the

information Squamish sought “would not contribute to the record in any substantive way and,

therefore, would not be material to the Board’s assessment.”

[277] Given the mandate of the Board, the iterative nature of the consultation process and the

fact that direct Crown consultation would take place in Phase III following the release of the

Board’s report, Squamish has not shown that it was a breach of procedural fairness for the Board

not to compel a fuller answer to its question.

(v)

The asserted deferral and delegation of the assessment of

important information

[278] The City of Burnaby next argues that the Board impermissibly deferred “the provision of

critically important information to after the Report stage, and after the [Governor in Council’s

decision]” (memorandum of fact and law, paragraph 164). Burnaby says that by doing so, the

Board acted contrary to the statutory regime and breached the principle of delegatus non potest

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delegare. At this point in its submissions, Burnaby did not suggest what specific aspect of the

statutory regime was contravened, or how the Board or the Governor in Council improperly

delegated their statutory responsibility. At this stage, Burnaby deals with this as an issue of

procedural fairness. I deal with the statutory scheme argument commencing at paragraph 322.

[279] Burnaby points to a number of issues where it alleges that the Board failed to weigh the

evidence and expert opinions put before it. Burnaby says:



It provided expert evidence that the Project presents serious and unacceptable

safety risks to the neighbourhoods that are proximate to the Burnaby Terminal as

a result of fire, explosion and boil-over, and that Trans Mountain had failed to

assess these risks.



It established gaps in Trans Mountain’s geotechnical investigation of the tunnel

option and a lack of analysis of the feasibility of the tunnel option.

It identified significant information gaps with respect to the Westridge Marine

Terminal, including gaps concerning: the final design; spill risk; fire risk;

geotechnical risk; and, the ability to respond to these risks.



It adduced evidence that the available fire response resources were inadequate.

It demonstrated the risk to Simon Fraser University following an incident at the

Burnaby Terminal because of the tunnel’s proximity to the only evacuation route

from the University.

[280] Burnaby argues that the Board declined to compel further information from Trans

Mountain on these points, and instead imposed conditions that required Trans Mountain to do

certain specified things in the future. For example, the Board imposed conditions requiring Trans

Mountain to file with the Board for approval a report to revise the terminal risk assessments,

including the Burnaby Terminal risk assessment, to include consideration of the risks not

assessed (Board Conditions 22 and 129). Board Condition 22 had to be met at least six months

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before Trans Mountain commenced construction; Condition 129 had to be met at least three

months before Trans Mountain applied to open each terminal. Burnaby also notes that many

conditions imposed by the Board were not subject to subsequent Board approval.

[281] Burnaby argues that this process prevented meaningful testing of information filed after

the Board issued its report recommending that the Project be approved. Further, the Governor in

Council did not have access to the material to be filed in response to the Board’s conditions

when it made its determination of the public interest.

[282] Underpinning these arguments is Burnaby’s assertion that the “Board’s rulings deprived

Burnaby of the ability to review and assess the validity of the alternatives assessment (or to

confirm that one was made).” (memorandum of fact and law, paragraph 41).

[283] I can well understand Burnaby’s concern—the consequence of a serious spill or

explosion and fire in a densely populated metropolitan area might be catastrophic. However, in

my respectful view, Burnaby’s understandable desire to be able to independently review and

assess the validity of the assessment of alternatives to the expansion of the Westridge Marine

Terminal, or other matters that affect the City, is inconsistent with the regulatory scheme enacted

by Parliament. Parliament has vested in the Board the authority and responsibility to consider

and then make recommendations to the Governor in Council on matters of public interest; the

essence of the Board’s responsibility is to balance the Project-related benefits against the Project-

related burdens and residual burdens, and to then make recommendations to the Governor in

Council. In this legislative scheme, the Board is not required to facilitate an interested party’s

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independent review and assessment of a project. It is not for this Court to opine on the

appropriateness of the policy expressed and implemented in the National Energy Board Act.

Rather, the Court’s role is to apply the legislation as Parliament has enacted.

[284] The Supreme Court has recognized the Board’s “expertise in the supervision and

approval of federally regulated pipeline projects” and described the Board to be “particularly

well positioned to assess the risks posed by such projects”. The Supreme Court went on to note

the Board’s “broad jurisdiction to impose conditions on proponents to mitigate those risks” and

to acknowledge that it is the Board’s “ongoing regulatory role in the enforcement of safety

measures [which] permits it to oversee long-term compliance with such conditions” (Chippewas

of the Thames First Nation, paragraph 48). While the Supreme Court was particularly focused on

the Board’s expertise in the context of its ability to assess risks posed to Indigenous groups, the

Board’s expertise extends to the full range of risks inherent in the operation of a pipeline,

including the risks raised by Burnaby.

[285] Burnaby’s submission must be assessed in the light of the Board’s approval process. I

will set out the Board’s approval process at some length because of the importance of this issue

to the City of Burnaby and other applicants.

[286] The Board described its approval process in Section 1.3 of its report:

Trans Mountain’s Application was filed while the Project was at an initial phase

of the regulatory lifecycle, as is typical of applications under section 52 of the

NEB Act. As set out in the Board’s Filing Manual, the Board requires a broad

range of information when a section 52 application is filed. At the end of the

hearing, the level of information available to the Board must be sufficient to allow

it to make a recommendation to the GIC that the Project is or is not in the public

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interest. There also must be sufficient information to allow the Board to draft

conditions that would attach to any new and amended CPCNs, and other

associated regulatory instruments (Instruments), should the Project be approved

by the GIC.

The Board does not require final information about every technical detail during

the application stage of the regulatory process. For example, much of the

information filed with respect to the engineering design would be at the

conceptual or preliminary level. Site-specific engineering information would not

be filed with the Board until after the detailed routing is confirmed, which would

be one of the next steps in the regulatory process should the Project be approved.

Completion of the detailed design of the project, as well as subsequent

construction and operations, would have to comply with:



the NEB Act, regulations, including the National Energy

Board Onshore Pipeline Regulations (OPR), referenced

standards and applicable codes;

the company’s conceptual design presented, and

commitments made in the Application and hearing

proceedings; and

conditions which the Board considers necessary.

The Board may impose conditions requiring a company to submit detailed

information for review (and in some cases, for approval) by the Board before the

company is permitted to begin construction. Further information, such as pressure

testing results, could be required in future leave to open applications before a

company would be permitted to begin pipeline operations. In compliance with the

OPR, a company is also required to fully develop an emergency response plan

prior to beginning operations. In some cases, the Board has imposed conditions

with specific requirements for the development, content and filing of the

emergency response plan (see Table 1). This would be filed and fully assessed at

a condition compliance stage once detailed routing is known. Because the detailed

routing information is necessary to perform this assessment, it would be

premature to require a fully detailed emergency response plan to be filed at the

time of the project application.

While the project application stage is important, as set out in Chapter 3, there are

further detailed plans, studies and specifications that are required before the

project can proceed. Some of these are subject to future Board approval, and

others are filed with the Board for information, disclosure, and/or future

compliance enforcement purposes. The Board’s recommendation on the project

application is not a final determination of all issues. While some hearing

participants requested the final detailed engineering or emergency response plans,

the Board does not require further detailed information and final plans at this

stage of the regulatory lifecycle.

Page: 97

To set the context for its reasons for recommendation, the Board finds it helpful to

identify the fundamental consideration used in reaching any section 52

determination. The overarching consideration for the Board’s public interest

determination at the application stage is: can this pipeline be constructed, operated

and maintained in a safe manner. The Board found this to be the case. While this

initial consideration is fundamental, a finding that a pipeline could be constructed,

operated and maintained in a safe manner does not mean a pipeline is necessarily

in the public interest as there are other considerations that the Board must weigh,

as discussed below. However, the analysis would go no further if the answer to

this fundamental question were answered in the negative, as an unsafe pipeline

can never be in the public interest.

(underlining added, footnote omitted)

[287] The Board went on to describe how projects are regulated through their lifecycle in

Chapter 3, particularly in Sections 3.1 to 3.5:

3.0

Regulating through the Project lifecycle

The approval of a project, through issuance of one or more Certificate of Public

Convenience and Necessity (CPCN) and/or orders incorporating applicable

conditions, forms just one phase in the Board’s lifecycle regulation. The Board’s

public interest determination relies upon the subsequent execution of detailed

design, construction, operation, maintenance and, ultimately, abandonment of a

project in compliance with applicable codes, commitments and conditions, such

as those discussed in Chapter 1. Throughout the lifecycle of an approved project,

as illustrated in Figure 4, the Board holds the pipeline company accountable for

meeting its regulatory requirements in order to keep its pipelines and facilities

safe and secure, and protect people, property and the environment. To accomplish

this, the Board reviews or assesses condition filings, tracks condition compliance,

verifies compliance with regulatory requirements, and employs appropriate

enforcement measures where necessary to quickly and effectively obtain

compliance, prevent harm, and deter future non-compliance.

After a project application is assessed and the Board makes its section 52

recommendation (as described in Chapter 2, section 2.1), the project cannot

proceed until and unless the Governor in Council approves the project and directs

the Board to issue the necessary CPCN. If approved, the company would then

prepare plans showing the proposed detailed route of the pipeline and notify

landowners. A detailed route hearing may be required, subject to section 35 of the

National Energy Board Act (NEB Act). The company would also proceed with

the detailed design of the project and could be required to undertake additional

studies, prepare plans or meet other requirements pursuant to NEB conditions on

any CPCN or related NEB order. The company would be required to comply with

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all conditions to move forward with its project, prior to and during construction,

and before commencing operations. While NEB specialists would review all

condition filings, those requiring approval of the Board would require this

approval before the project could proceed.

Once construction is complete, the company would need to apply for the Board’s

permission (or “leave”) to open the project and begin operations. While some

conditions may apply for the life of a pipeline, typically the majority must be

satisfied prior to beginning operations or within the first few months or years of

operation. However, the company must continue to comply with the National

Energy Board Onshore Pipeline Regulations (OPR) and other regulatory

requirements to operate the pipeline safely and protect the environment.

…

If the Project is approved, the Board would employ its established lifecycle

compliance verification and enforcement approach to hold Trans Mountain

accountable for implementing the proposed conditions and other regulatory

requirements during construction, and the subsequent operation and maintenance

of the Project.

3.1 Condition compliance

If the Project is approved and Trans Mountain decides to proceed, it would be

required to comply with all conditions that are included in the CPCNs and

associated regulatory instruments (Instruments). The types of filings that would

be required to fulfill the conditions imposed on the Project, if approved, are

summarized in Table 4.

If the Project is approved, the Board would oversee condition compliance, make

any necessary decisions respecting such conditions, and eventually determine,

based on filed results of field testing, whether the Project could safely be granted

leave to open.

Documents filed by Trans Mountain on condition compliance and related Board

correspondence would be available to the public on the NEB website. All

condition filings, whether or not they are for approval, would be reviewed and

assessed to determine whether the company has complied with the condition, and

whether the filed information is acceptable within the context of regulatory

requirements and standards, best practices, professional judgement and the goals

the condition sought to achieve. If a condition is “for approval,” the company

must receive formal approval, by way of a Board letter, for the condition to be

fulfilled.

If a filing fails to fulfill the condition requirements or is determined to be

inadequate, the Board would request further information or revisions from the

company by a specified deadline, or may direct the company to undertake

additional steps to meet the goals that the condition was set out to achieve.

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3.2 Construction phase

During construction, the Board would require Trans Mountain to have qualified

inspectors onsite to oversee construction activities. The Board would also conduct

field inspections and other compliance verification activities (as described in

section 3.5) to confirm that construction activities meet the conditions of the

Project approval and other regulatory requirements, to observe whether the

company is implementing its own commitments and to monitor the effectiveness

of the measures taken to meet the condition goals, and ensure worker and public

safety and protection of the environment.

3.3 Leave to open

If the Project is approved and constructed, the Board will require Trans Mountain

to also apply, under section 47 of the NEB Act, for leave to open the pipelines and

most related facilities. This is a further step that occurs after conditions applicable

to date have been met and the company wishes to begin operating its pipeline and

facilities. The Board reviews the company’s submissions for leave to open,

including the results of field pressure testing, and may seek additional information

from the company. Before granting leave to open, the Board must be satisfied that

the pipeline or facility has been constructed in compliance with requirements and

that it can be operated safely. The Board can impose further terms and conditions

on a leave to open order, if needed.

(underlining added, figures and tables omitted)

[288] In Section 3.5 the Board set out its compliance and enforcement programs noting that:

While all companies are subject to regulatory oversight, some companies receive

more than others. In other words, high consequence facilities, challenging projects

and those companies who are not meeting the Board’s regulatory expectations and

goals can expect to see the Board more often than those companies and projects

with routine operations.

[289] No applicant challenged the accuracy of the Board’s formulation of its approval process

and subsequent compliance verification and enforcement approach. The City of Burnaby has not

shown how the Board’s multi-step approval process is either procedurally unfair or an improper

delegation of authority. Implicit in the Board’s imposition of a condition, such as a condition

requiring a revised risk assessment, or a condition requiring information regarding tunnel

Page: 100

location, construction methods, and the like, is the Board’s expectation that the condition may

realistically be complied with, and that compliance with the condition will allow the pipeline to

be constructed, operated and maintained in a safe manner. Also implicit in the Board’s

imposition of a condition is its understanding of its ability to assess condition filings (whether or

not the condition requires formal approval), and its ability to oversee compliance with its

conditions.

[290] Transparency with respect to Trans Mountain’s compliance with conditions is provided

by the Board publishing on its website all documents filed by Trans Mountain relating to

condition compliance and all related, responsive Board correspondence.

[291] As for the role of the Governor in Council in such a tiered approval process, the recitals

to the Order in Council show that the Board’s conditions were placed before the Governor in

Council. Therefore, the Governor in Council must be seen to have been aware of the extent of

the matters left for future review by the Board, and to have accepted the Board’s assessment and

recommendation about the public interest on that basis.

(vi)

Failing to provide adequate reasons

[292] The City of Burnaby next argues that the Board erred by failing to provide sufficient

reasons on the following issues:

a.

b.

c.

d.

alternative means of carrying out the Project;

risks relating to fire and spills (including seismic risk);

the suitability of the Burnaby Mountain Tunnel;

the protection of municipal water sources; and,

Page: 101

e.

whether, and on what basis, the Project is in the public interest.

[293] I begin my analysis by noting that the adequacy of reasons is not a “stand-alone basis for

quashing a decision”. Rather, reasons are relevant to the overall assessment of reasonableness.

Further, reasons “must be read together with the outcome and serve the purpose of showing

whether the result falls within a range of possible outcomes.” (Newfoundland and Labrador

Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R.

708, at paragraph 14).

[294] This is consistent with the Court’s reasoning in Dunsmuir where the Supreme Court

explained the notion of reasonableness review and spoke of the role reasons play in

reasonableness review:

[47] Reasonableness is a deferential standard animated by the principle that

underlies the development of the two previous standards of reasonableness:

certain questions that come before administrative tribunals do not lend themselves

to one specific, particular result. Instead, they may give rise to a number of

possible, reasonable conclusions. Tribunals have a margin of appreciation within

the range of acceptable and rational solutions. A court conducting a review for

reasonableness inquires into the qualities that make a decision reasonable,

referring both to the process of articulating the reasons and to outcomes. In

judicial review, reasonableness is concerned mostly with the existence of

justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible,

acceptable outcomes which are defensible in respect of the facts and law.

[48] The move towards a single reasonableness standard does not pave the way

for a more intrusive review by courts and does not represent a return to pre-

Southam formalism. In this respect, the concept of deference, so central to judicial

review in administrative law, has perhaps been insufficiently explored in the case

law. What does deference mean in this context? Deference is both an attitude of

the court and a requirement of the law of judicial review. It does not mean that

courts are subservient to the determinations of decision makers, or that courts

must show blind reverence to their interpretations, or that they may be content to

pay lip service to the concept of reasonableness review while in fact imposing

their own view. Rather, deference imports respect for the decision-making process

Page: 102

of adjudicative bodies with regard to both the facts and the law. The notion of

deference “is rooted in part in a respect for governmental decisions to create

administrative bodies with delegated powers” (Canada (Attorney General) v.

Mossop, 2008 SCC 9, [1993] 1 S.C.R. 554, at p. 596, per L’Heureux-Dubé J.,

dissenting). We agree with David Dyzenhaus where he states that the concept of

“deference as respect” requires of the courts “not submission but a respectful

attention to the reasons offered or which could be offered in support of a

decision”: “The Politics of Deference: Judicial Review and Democracy”, in M.

Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286 (quoted

with approval in Baker, at para. 65, per L’Heureux-Dubé J.; Ryan, at para. 49).

(underlining added)

[295] Reasons need not include all of the relevant arguments, statutory provisions or

jurisprudence. A decision-maker need not make an explicit finding on each constituent element

leading to the final conclusion. Reasons are adequate if they allow the reviewing court to

understand why the decision-maker made its decision and permit the reviewing court to

determine whether the conclusion is within the range of acceptable outcomes.

[296] I now turn to consider Burnaby’s submissions in the context of the Board’s reasons.

Alternative means of carrying out the Project

[297] Burnaby’s concern about alternative means of carrying out the Project centers on the

Board’s treatment of alternative locations for the marine terminal. In Section 11.1.2 the Board

dealt with the requirement imposed by paragraph 19(1)(g) of the Canadian Environmental

Assessment Act, 2012 that an environmental assessment of a designated project must take into

account “alternative means of carrying out the designated project that are technically and

economically feasible”. The views of the Board are expressed in this section on pages 244

through 245.

Page: 103

[298] Of particular relevance to Burnaby’s concern are the first two paragraphs of the Board’s

reasons:

The Board finds that Trans Mountain’s route selection process, route selection

criteria, and level of detail for its alternative means assessment are appropriate.

The Board further finds that aligning the majority of the proposed pipeline route

alongside, and contiguous to, existing linear disturbances is reasonable, as this

would minimize the environmental and socio-economic impacts of the Project.

The Board acknowledges the concern raised by the City of Burnaby that Trans

Mountain did not provide an assessment of the risks, impacts and effects of the

alternate marine terminal locations at Kitimat, B.C., or Roberts Bank in Delta,

B.C. The Board finds that Trans Mountain has provided an adequate assessment,

including consideration of technical, socio-economic and environmental effects,

of technically and economically feasible alternative marine terminal locations.

[299] In my view, these reasons allowed the Governor in Council and allow this Court to know

why the Board found Trans Mountain’s assessment of alternative means to be adequate or

appropriate—the Board accepted the facts conveyed by Trans Mountain and found that these

facts provided an appropriately detailed consideration of the alternative means. In my further

view, the reasons, when read with the record, also allow the Court to consider whether the

Board’s treatment of alternatives to the Westridge Marine Terminal were so materially flawed

that the Board’s report was not a “report” that the Governor in Council could rely upon. This is a

substantive issue I deal with below commencing at paragraph 322.

Assessment of risks

[300] Burnaby’s concerns about the assessment of risks centre on the Burnaby Terminal risk

assessment, the Westridge Marine Terminal risk assessment, the Emergency Fire Response plan

and the evacuation of Simon Fraser University.

Page: 104

Burnaby Terminal

[301] The Board’s consideration of terminal expansions generally is found in Section 6.4 of its

report. The Burnaby Terminal is discussed at pages 92 through 95 of the Board’s report. After

setting out the evidence, including Burnaby’s evidence, at page 95 the Board expressed its

reasons on the Burnaby Terminal as follows:

The Burnaby Terminal is uphill of the neighborhood of Forest Grove. An issue of

potential concern is the possibility, however remote, of a multiple-tank failure in a

common impounding area exceeding the available secondary containment

capacity under certain conditions. The Board would impose a condition requiring

Trans Mountain to demonstrate that the secondary containment system would be

capable of draining large spills away from Tank 96, 97 or 98 to the partial RI.

Trans Mountain must also demonstrate that the secondary containment system has

the capacity to contain a spill from a multiple-tank rupture scenario (Condition

24).

The City of Burnaby and the City of Burnaby Fire Department raised concerns

about fire and safety risks at the Burnaby Terminal following, in particular, those

associated with boil-overs. Trans Mountain claimed that boil-over events are

unlikely, yet did not quantify the risks through rigorous analysis. The Board is of

the view that a complete assessment of risk requires consideration of the

cumulative risk from all tanks at a terminal. The Board would impose conditions

requiring Trans Mountain to revise the terminal risk assessments, including the

Burnaby Terminal, to demonstrate how the mitigation measures will reduce the

risks to levels that are As Low As Reasonably Practicable (ALARP) while

complying with the Major Industrial Accidents Council of Canada (MIACC)

criteria considering all tanks in each respective terminal (Conditions 22 and 129).

[302] With respect to the geotechnical design, the Board wrote at page 97:

The Board acknowledges the concerns of participants regarding the preliminary

nature of the geotechnical design evidence provided. However, the Board is of the

view that the design information and the level of detail provided by Trans

Mountain with respect to the geotechnical design for the Edmonton Terminal

West Tank Area and the Burnaby Terminal are sufficient for the Board at the

application stage. The Board notes that more extensive geotechnical work will be

completed for the detailed engineering and design phase of the Project.

…

Page: 105

With regard to the selection of Seismic Use Group (SUG) for the design of the

tanks, the Board notes that Trans Mountain has not made a final determination.

Nevertheless, should the Project be approved, the Board will verify that Trans

Mountain’s tanks have secondary controls to prevent public exposure, in

accordance with SUG I design criteria, by way of Conditions 22, 24 and 129.

[303] In my view, these reasons adequately allow the Court to understand why the Board

rejected Burnaby’s evidence and why it imposed the conditions it did.

Westridge Marine Terminal

[304] The Board dealt with the Westridge Marine Terminal expansion in Section 6.5 of its

report.

[305] The Board expressed its views at pages 100 through 102. With respect to the design

approach the Board wrote:

Trans Mountain has committed to design, construct, and operate the Westridge

Marine Terminal (WMT) in accordance with applicable regulations, standards,

codes and industry best practices. The Board accepts Trans Mountain’s design

approach, including Trans Mountain’s effort to eliminate two vapour recovery

tanks in the expanded WMT by modifying the vapour recovery technology. The

Board considers this to be a good approach for eliminating potential spills and fire

hazards. The Board would impose Condition 21 requiring Trans Mountain to

provide its decision as well as its rationale to either retain or eliminate the

proposed relief tank.

[306] With respect to the geotechnical design, the Board wrote:

The Board acknowledges the City of Burnaby’s concern regarding the level of

detail of the geotechnical information provided in the hearing for the Westridge

Marine Terminal (WMT) offshore facilities. However, the Board is of the view

that Trans Mountain has demonstrated its awareness of the requirements for the

geotechnical design of the offshore facilities and accepts Trans Mountain’s

geotechnical design approach.

Page: 106

To confirm that soil conditions have been adequately assessed for input to the

final design of the WMT offshore facilities, the Board would impose conditions

requiring Trans Mountain to file a final preliminary geotechnical report for the

design of the offshore facilities, and the final design basis for the offshore pile

foundation layout once Trans Mountain has selected the pile design (Conditions

34 and 83).

To verify the geotechnical design approach for the WMT onshore facilities the

Board would impose Condition 33 requiring Trans Mountain to file a preliminary

geotechnical report for the onshore facilities prior to the commencement of

construction.

The Board would examine the geotechnical reports upon receipt and advise Trans

Mountain of any further requirements for the fulfilment of the above conditions

prior to the commencement of construction.

[307] I have previously dealt with Burnaby’s concern with the Board’s failure to compel further

and better information from Trans Mountain at the hearing stage, and to instead impose

conditions requiring Trans Mountain to do certain things in future. Burnaby’s concerns relating

to the assessment of risks centre on this approach taken by the Board. Burnaby has not

demonstrated how the Board’s reasons with respect to the Westridge Marine Terminal risk

assessment are inadequate.

Emergency fire response

[308] The Board responded to Burnaby’s concerns about adequate resources to respond to a fire

as follows at page 156:

The Board shares concerns raised by the City of Burnaby Fire Department and

others about the need for adequate resources to respond in the case of a fire. The

Board finds the 6-12 hour response time proposed by Trans Mountain for

industrial firefighting contractors to arrive on site as inadequate, should they be

needed immediately for a response to a fire at the Burnaby Terminal. The Board

would impose conditions 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

Terminal (WMT) and at the Edmonton, Sumas, and Burnaby Terminals. The

Page: 107

conditions would require Trans Mountain to assess and evaluate resources and

equipment to address fires, and a summary of consultation with appropriate

municipal authorities and first responders that will help inform a Firefighting

Capacity Framework (Conditions 118 and 138).

[309] Again, Burnaby’s concern is not so much with respect to the adequacy of the Board’s

reasons, but rather with the Board’s approach to dealing with Burnaby’s concerns through the

imposition of conditions—in this case conditions that do not require formal Board approval. On

this last point, the Board’s explanation of its process for the review of conditions supports the

conclusion that an inadequate response to a condition, even a condition not requiring formal

Board approval, would be detected by the Board’s specialists. Further, the Board oversees

compliance with the conditions it imposes.

[310] In any event, I see no inadequacy in the Board’s reasons.

Suitability of the Burnaby Mountain Tunnel

[311] The Board deals with the Burnaby Mountain Tunnel in Sections 6.2.2 and 6.2.3. The

Board’s views, in part, are expressed as follows at pages 81 and 82:

Regarding the City of Burnaby’s concern with Trans Mountain’s geotechnical

investigation, the Board is of the view that the level of detail of the geotechnical

investigation for the tunnel option is sufficient for the purpose of assessing the

feasibility of constructing the tunnel. The Board notes that a second phase of

drilling is planned for the development of construction plans at the tunnel portals,

and that additional surface boreholes or probe holes could be drilled from the

tunnel face during construction. The Board is of the view that both the tunnel and

street options are technically feasible, and accepts Trans Mountain’s proposal that

the streets option be considered as an alternative to the tunnel option.

The Board is not aware of the use of the concrete or grout-filled tunnel installation

method for other hydrocarbon pipelines in Canada. The Board is concerned that

damage to the pipe or coating may occur during installation of the pipelines or

grouting, and that there will be limited accessibility for future maintenance and

Page: 108

repairs. The Board is also concerned that there may be voids or that cracks could

form in the grout. The Board would require Trans Mountain to address these and

other matters, including excavation, pipe handing, backfilling, pressure testing,

cathodic protection, and leak detection, through the fulfillment of Conditions 26,

27 and 28 on tunnel design, construction, and operation.

The Board would impose Condition 29 regarding the quality and quantity of

waste rock from the tunnel and Trans Mountain’s plans for its disposal.

The Board would also impose Condition 143 requiring Trans Mountain to

conduct baseline inspections, including in-line inspection surveys, of the new

delivery pipelines in accordance with the timelines and descriptions set out in the

condition. The Board is of the view that these inspections would aid in mitigating

any manufacturing and construction related defects, and in establishing re-

inspection intervals.

[312] Burnaby has not demonstrated how these reasons are inadequate.

Protection of municipal water sources

[313] While Burnaby enumerated this as an issue on which the Board gave inadequate reasons,

Burnaby made no submissions on this point and did not point to any particular section of the

Board’s reasons said to be deficient. In the absence of submissions on the point, Burnaby has not

demonstrated the reasons to be inadequate.

Public interest

[314] Again, while Burnaby enumerated this issue as an issue on which the Board gave

inadequate reasons, Burnaby made no submissions on the point.

[315] The Board’s finding with respect to public interest is contained in Chapter 2 of the

Board’s report where, among other things, the Board described the respective benefits and

burdens of the Project and then balanced the benefits and burdens in order to conclude that the

Page: 109

Project “is in the present and future public convenience and necessity, and in the Canadian public

interest”. In the absence of submissions on the point, Burnaby has not demonstrated the reasons

to be inadequate.

(vii) Trans Mountain’s reply evidence

[316] At paragraph 71 of its memorandum of fact and law, Tsleil-Waututh makes the bare

assertion that the Board “permitted [Trans Mountain] to file improper reply evidence”. While

Tsleil-Waututh referenced in a footnote its motion record filed in response to Trans Mountain’s

reply evidence, it did not make any submissions on how the Board erred or how the reply

evidence was improper. Nor did Tsleil-Waututh reference the Board’s reasons issued in response

to its motion.

[317] Tsleil-Waututh argued before the Board that, rather than testing Tsleil-Waututh’s

evidence through Information Requests, Trans Mountain filed extensive new or supplementary

evidence in reply. Tsleil-Waututh alleged that the reply evidence was substantially improper in

nature. Tsleil-Waututh sought an order striking portions of Trans Mountain’s reply evidence. In

the alternative Tsleil-Waututh sought, among other relief, an order allowing it to issue

Information Requests to Trans Mountain about its reply evidence and allowing it to file sur-reply

evidence.

[318] The Board, in Ruling No. 96, found that Trans Mountain’s reply evidence was not

improper. In response to the objections raised before it, the Board found that:

Page: 110



Trans Mountain’s reply evidence was not evidence that Trans Mountain ought to

have brought forward as evidence-in-chief in order to meet its onus.

Trans Mountain’s reply evidence was filed in response to new evidence adduced

by the interveners.

Given the large volume of evidence filed by the interveners, the length of Trans

Mountain’s reply evidence was not a sufficient basis on which to find it to be

improper.



To the extent that portions of the reply evidence repeated evidence already

presented, this caused no prejudice to the interveners who had already had an

opportunity to test the evidence and respond to it.

[319] The Board allowed Tsleil-Waututh to test the reply evidence through one round of

Information Requests. The Board noted that the final argument stage was the appropriate stage

for interveners and Trans Mountain to make submissions to the Board about the weight to be

given to the evidence.

[320] Tsleil-Waututh has not demonstrated any procedural unfairness arising from the Board’s

dismissal of its motion to strike portions of Trans Mountain’s reply evidence.

(viii) Conclusion on procedural fairness

[321] For all the above reasons the applicants have not demonstrated that the Board breached

any duty of procedural fairness.

Page: 111

(b)

Did the Board fail to decide certain issues before recommending

approval of the Project?

[322] Both Burnaby and Coldwater make submissions on this issue. Additionally, Coldwater,

Squamish and Upper Nicola make submissions about the Board’s failure to decide certain issues

in the context of the Crown’s duty to consult. The latter submissions will be considered in the

analysis of the adequacy of the Crown’s consultation process.

[323] Burnaby’s and Coldwater’s submissions may be summarized as follows.

[324] Burnaby raises two principal arguments: first, the Board failed to consider and assess the

risks and impacts of the Project to Burnaby, instead deferring the collection of information

relevant to the risks and impacts and consideration of that information until after the decision of

the Governor in Council when Trans Mountain was required to comply with the Board’s

conditions; and, second, the Board failed to consider alternative means of carrying out the

Project and their environmental effects. Instead, contrary to paragraph 19(1)(g) of the Canadian

Environmental Assessment Act, 2012, the Board failed to require Trans Mountain to include with

its application an assessment of the Project’s alternatives and failed to require Trans Mountain to

provide adequate answers in response to Burnaby’s multiple Information Requests about

alternatives to the Project.

[325] With respect to the first error, Burnaby asserts that it is a “basic principle of law that a

tribunal or a court must weigh and decide conflicting evidence. It cannot defer determinations

post-judgment.” (Burnaby’s memorandum of fact and law, paragraph 142). In breach of this

Page: 112

principle, the Board did not require Trans Mountain to provide further evidence, nor did the

Board weigh or decide conflicting evidence. Instead, the Board deferred assessment of critical

issues by imposing a series of conditions on Trans Mountain.

[326] With respect to the second error, Burnaby states that Trans Mountain failed to provide

evidence about alternative routes and locations for portions of the Project, including the Burnaby

Terminal and the Westridge Marine Terminal. Thus, Burnaby says the Board “had no

demonstrated basis on the record to decide” about preferred options or to decide that Trans

Mountain used “criteria that justify and demonstrate how the proposed option was selected and

why it is the preferred option.” (Burnaby’s memorandum of fact and law, paragraph 133).

[327] Coldwater asserts that contrary to paragraph 19(1)(g) of the Canadian Environmental

Assessment Act, 2012, the Board failed to look at the West Alternative as an alternative means of

carrying out the Project. Briefly stated, the West Alternative is an alternative route for a segment

of the new pipeline. The approved route for this segment of the new pipeline passes through the

recharge zone of the aquifer that supplies the sole source of drinking water for 90% of the

residents of the Coldwater Reserve and crosses two creeks which are the only known, consistent

sources of water that feed the aquifer. The West Alternative is said by Coldwater to pose the

least apparent danger to the aquifer.

[328] Trans Mountain responds that the Board considered the risks and impacts of the Project

to Burnaby and determined that there was sufficient evidence to conclude that the Project can be

constructed, operated and maintained in a safe manner. Further, it was reasonable for the Board

Page: 113

to implement conditions requiring Trans Mountain to submit additional information for Board

review or approval throughout the life of the Project. This Court’s role is not to reweigh evidence

considered by the Board.

[329] Trans Mountain notes that the proponent’s application and the subsequent Board hearing

represent the process by which the Board collects enough information to ensure that a project can

be developed safely and that its impacts are mitigated. At the end of the hearing, the Board

requires sufficient information to assess the Project’s impacts, and whether the Project can be

constructed, operated and maintained safely, and to draft terms and conditions to attach to a

certificate of public convenience and necessity, should the Governor in Council approve the

Project. It follows that the Board did not improperly defer its consideration of Project impacts to

the conditions.

[330] To the extent that some applicants suggest that the Board acted contrary to the

“precautionary principle” Trans Mountain responds that the precautionary principle must be

applied with the corollary principle of “adaptive management”. Adaptive management responds

to the difficulty, or impossibility, of predicting all of the environmental consequences of a

project on the basis of existing knowledge. Adaptive management permits a project with

uncertain, yet potentially adverse, environmental impacts to proceed based on mitigation

measures and adaptive management techniques designed to identify and deal with unforeseen

effects (Canadian Parks and Wilderness Society v. Canada (Minister of Canadian Heritage),

2003 FCA 197, [2003] 4 F.C. 672, at paragraph 24).

Page: 114

[331] With respect to the assessment of alternative means, Trans Mountain notes that it

presented evidence that it had conducted a feasibility analysis of alternative locations to the

Westridge Marine Terminal and the Burnaby Terminal. Based on technical, economic and

environmental considerations Trans Mountain had eliminated these options because of the

significantly increased costs and larger environmental impacts associated with these alternatives.

[332] Trans Mountain also argues that it presented evidence to confirm that its routing criteria

followed the existing pipeline alignment and other linear facilities wherever possible.

Additionally, it presented various routing alternatives to the Board. Trans Mountain’s preferred

corridor through Burnaby Mountain was developed in response to requests that it consider a

trenchless option through Burnaby Mountain (as opposed to routing the new pipeline through

residential streets). Further, while it had initially considered the West Alternative route around

the Coldwater Reserve, Trans Mountain rejected this alternative because it necessitated two

crossings of the Coldwater River and involved geo-technical challenges and greater

environmental disturbances.

[333] Based on the evidence before it the Board found that:



Trans Mountain provided an adequate assessment of technically and economically

feasible alternatives, including alternative locations;



the Burnaby Mountain corridor minimized Project impacts and risks;

Trans Mountain’s route selection process and criteria, and the level of detail it

provided for its alternative means assessment, were appropriate; and

the Board imposed Condition 39 to deal with Coldwater’s concerns regarding the

aquifer. This condition required Trans Mountain to file with the Board, at least six

months prior to commencing construction between two specified points, a



Page: 115

hydrogeological report relating to Coldwater’s aquifer. This report must describe,

delineate and characterize a number of things. For example, based on the report’s

quantification of the risks posed to the groundwater supplies for the Coldwater

Reserve, the report must “describe proposed measures to address identified risks,

including but not limited to considerations related to routing, project design,

operational measures, or monitoring”.

[334] Trans Mountain submits that while the applicants disagree with the Board’s finding about

the range of alternatives, the Board has discretion to determine the range of alternatives it must

consider and it is not this Court’s role to reweigh the Board’s assessment of the facts.

(i)

Did the Board fail to assess the risks and impacts posed by

the Project to Burnaby?

[335] At paragraphs 278 to 291 I dealt with Burnaby’s argument that the Board breached the

duty of procedural fairness by deferring and delegating the assessment of important information.

This argument covers much of the same ground, except it is not couched in terms of procedural

fairness.

[336] The gist of Burnaby’s concern is reflected in its argument that “[i]t is a basic principle of

law that a tribunal or court must weigh and decide conflicting evidence. It cannot defer

determinations post-judgment.”

[337] This submission is best considered in concrete terms. The risks the Board is said not to

have assessed are the risks posed by the Burnaby Terminal, the tunnel route through Burnaby

Mountain, the Westridge Marine Terminal, the lack of available emergency fire response

Page: 116

resources to respond to a fire at the Westridge Marine and Burnaby terminals and, finally, the

risk in relation to the evacuation of Simon Fraser University following an incident at the

Burnaby Terminal. Illustrative of Burnaby’s concerns is its specific and detailed argument with

respect to the assessment of the risk associated with the Burnaby Terminal.

[338] With respect to the assessment of the risks associated with the Burnaby Terminal,

Burnaby points to the report of its expert, Dr. Ivan Vince, which identified deficiencies or

information gaps in Trans Mountain’s risk assessment for the Burnaby Terminal. A second

report prepared by Burnaby’s Deputy Fire Chief identified gaps in Trans Mountain’s analysis of

fire risks and fire response capability.

[339] Burnaby acknowledges that the Board recognized these gaps and deficiencies. Thus, it

found that while Trans Mountain claimed that boil-over events are unlikely, Trans Mountain “did

not quantify the risks through a rigorous analysis” and that “a complete assessment of risk

requires consideration of the cumulative risk from all tanks at a terminal”. Burnaby argues,

however, that despite recognizing this deficiency, the Board then failed to require Trans

Mountain to provide further information and assessment prior to the issuance of the Board’s

report. Instead, the Board imposed conditions requiring Trans Mountain to file for the Board’s

approval a report revising the terminal risk assessments, including the Burnaby Terminal risk

assessment, and including consideration of the risks not assessed (Conditions 22 and 129).

[340] Condition 22 specifically required the revised risk assessment to quantify and/or include

the following:

Page: 117

a.

b.

c.

d.

the effect of any revised spill burn rates;

the potential consequences of a boil-over;

the potential consequences of flash fires and vapour cloud explosions;

the cumulative risk based on the total number of tanks in the terminal, considering

all potential events (pool fire, boil-over, flash fire, vapour cloud explosion);

the domino (knock-on) effect caused by a release of the contents of one tank on

other tanks within the terminals and impoundment area(s), or other tanks in

adjacent impoundment areas; and,

e.

f.

risk mitigation measures, including ignition source control methods.

[341] The Board required that for those risks that could not be eliminated “Trans Mountain

must demonstrate in each risk assessment that mitigation measures will reduce the risks to levels

that are As Low As Reasonably Practicable (ALARP) while complying with the Major Industrial

Accidents Council of Canada (MIACC) criteria for risk acceptability.”

[342] Burnaby concludes its argument on this point by stating that this demonstrates that when

the Board completed its report and made its recommendation to the Governor in Council the

Board did not have information on the risks enumerated in Condition 22, or information on

whether these risks could be mitigated. It follows, Burnaby submits, that the Board failed in its

duty to weigh and decide conflicting evidence.

[343] Burnaby advances similar arguments in respect of the other risks described above.

[344] In my view, Burnaby’s argument illustrates that the Board did look critically at the

competing expert evidence about risk assessment. After weighing the competing expert reports,

the Board determined that Burnaby’s evidence did reveal gaps and deficiencies in Trans

Page: 118

Mountain’s risk assessments. Burnaby’s real complaint is not that the Board did not consider and

weigh conflicting evidence. Rather, its complaint is that the Board did not then require Trans

Mountain to in effect re-do its risk assessment.

[345] However this, in my respectful view, overlooks the Board’s project approval process, a

process described in detail at paragraphs 285 to 287 above.

[346] This process does not require a proponent to file in its application information about

every technical engineering detail. What is required is that by the end of the Board’s hearing the

Board have sufficient information before it to allow it to form its recommendation to the

Governor in Council about whether the project is in the public interest and, if approved, what

conditions should attach to the project. Included in the consideration of the public interest is

whether the project can be constructed, operated and maintained safely.

[347] This process reflects the technical complexity of projects put before the Board for

approval. What was before the Board for consideration was Trans Mountain’s study and

application for approval of a 150 metre-wide pipeline corridor for the proposed pipeline route. At

the hearing stage much of the information filed with the Board about the engineering design was

at a conceptual or preliminary level.

[348] Once a project is approved, one of the next steps in the regulatory process is a further

hearing for the purpose of confirming the detailed routing of a project. Only after the detailed

route is approved by the Board can site-specific engineering information be prepared and filed

Page: 119

with the Board. Similarly, detailed routing information is necessary before things such as a fully

detailed emergency response plan acceptable to the Board may be prepared and filed (report,

page 7).

[349] The Board describes the approval of a project to be “just one phase” in the Board’s

lifecycle regulation. Thereafter the Board’s public interest determination “relies upon the

subsequent execution of detailed design, construction, operation, maintenance and, ultimately,

abandonment of a project in compliance with applicable codes, commitments and conditions”

(report, page 19).

[350] As stated above, implicit in the Board’s imposition of a condition is the Board’s expert

view that the condition can realistically be complied with, and that compliance with the

condition will allow the pipeline to be constructed, operated and maintained in a safe manner.

After the Board imposes conditions, mechanisms exist for the Board to assess information filed

in response to its conditions and to oversee compliance with its conditions.

[351] Burnaby obviously disagrees with the Board’s assessment of risk. However, Burnaby has

not shown that the Board’s approval process is in any way contrary to the legislative scheme.

Nor has it demonstrated that the approval process impermissibly defers determinations post-

judgment. Courts cannot determine issues after a final judgment is rendered because of the

principle of functus officio. While this principle has some application to administrative decision-

makers it has less application to the Board whose mandate is ongoing to regulate through a

project’s entire lifecycle.

Page: 120

(ii)

Did the Board fail to consider alternative means of carrying

out the Project?

[352] As explained above, Burnaby’s concern is that Trans Mountain did not provide sufficient

information to allow the Board to conclude that Trans Mountain’s assessment of alternatives was

adequate. Burnaby says that the Board simply accepted Trans Mountain’s unsupported assertion

that the alternatives would result in “significantly greater cost, larger footprint and additional

environmental effects, as compared to expanding existing facilities” without testing Trans

Mountain’s assertion. Burnaby argues that evidence is required to support that assertion “so that

the evidence may be tested by intervenors and weighed by the Board in determining whether the

preferred location is the best environmental alternative and in the public interest.” (Burnaby’s

memorandum of fact and law, paragraph 136).

[353] I begin consideration of Burnaby’s submission with the observation that Burnaby’s

challenge is a challenge to the Board’s assessment of the sufficiency of the evidence before it.

The Board, as an expert Tribunal, is entitled to significant deference when making such a fact-

based assessment.

[354] Moreover, in my respectful view, Burnaby’s submission fails to take into account that

paragraph 19(1)(g) of the Canadian Environmental Assessment Act, 2012 does not require the

Board to have regard to any and all alternative means of carrying out a designated project. The

Board is required to consider only those alternative means that are “technically and economically

feasible”.

Page: 121

[355] While Burnaby relies upon guidance from the Canadian Environmental Assessment

Agency as to the steps to be followed in the assessment of alternative means, and also relies upon

the guidance set out in the Board’s Filing Manual about the filing requirements for the

consideration of alternatives, these criteria apply only to the treatment of true alternatives, that is

alternatives that are technically and economically feasible.

[356] I now turn to Burnaby’s specific concern that the Board simply accepted Trans

Mountain’s assertion that Project alternatives would result in “significantly greater cost, larger

footprint and additional environmental effects, as compared to expanding existing facilities”

without testing this assertion. Burnaby argues that the Board was obliged to require that Trans

Mountain provide evidence about alternative routes and locations for the Burnaby Terminal and

the Westridge Marine Terminal so that the evidence could be tested by it and other interveners.

[357] The impugned quotation comes from Trans Mountain’s response to Burnaby’s first

Information Request (Exhibit H to the affidavit of Derek Corrigan). As previously referred to

above at paragraph 269, in addition to Burnaby’s Information Requests, the Board also served

two Information Requests on Trans Mountain questioning it about alternative marine terminals.

[358] The preamble to the Board’s second Information Request referenced Trans Mountain’s

first response to the Board in which it stated that it had considered potential alternative marine

terminal locations based on the feasibility of coincident marine and pipeline access, and screened

them based on technical, economic, and environmental considerations. The preamble also

referenced Trans Mountain’s response that it had ultimately concluded that constructing and

Page: 122

operating a new marine terminal and supporting infrastructure would result in significantly

greater cost, a larger footprint and significantly greater environmental effects as compared to the

existing facilities. Based on this conclusion Trans Mountain did not continue with a further

assessment of alternative termini for the Project.

[359] One of the specific inquiries directed to Trans Mountain by the Board in its second

Information Request was:

Please elaborate on Trans Mountain’s rationale for the Westridge Marine

Terminal as the preferred alternative, including details to justify Trans Mountain’s

statement in [Trans Mountain’s response to the Board’s first Information Request]

that constructing and operating a new marine terminal and supporting

infrastructure would result in significantly greater cost, a larger footprint, and

additional environmental effects, as compared to expanding existing facilities.

[360] In its response to the Board, Trans Mountain began by explaining the consideration it had

given the option of a northern terminal. Trans Mountain’s assessment ultimately “favoured

expansion of the existing system south over a new northern lateral [pipeline] and terminal.” This

assessment was based on the following considerations. The northern option involved:



A 250 kilometre longer pipeline with a concomitant 10% to 20% higher project

capital cost.

Greater technical challenges, including routing through high alpine areas of the

Coast Mountains, or extensive tunneling to avoid these areas. These technical

challenges, while not determined to be insurmountable, resulted in greater

uncertainty for both cost and construction schedule.



Fewer opportunities to benefit from existing operations, infrastructure and

relationships. These benefits involved both using the existing Trans Mountain

right-of-way, facilities, programs and personnel, and the synergies flowing from

other existing infrastructure such as road access, power, and marine infrastructure.

Page: 123

The inability to benefit from existing operations would increase the footprint and

the potential impact of the northern option.

[361] Based on these considerations, Trans Mountain concluded that expansion along the

existing Trans Mountain pipeline route was the more favourable option because of the higher

costs and the greater uncertainty of both cost and schedule that accompanied the northern option.

[362] Trans Mountain then turned to explain its consideration of the alternative southern

terminals. Five southern alternative locations were considered: (i) Howe Sound, which was

eliminated because there was no feasible pipeline access west of Hope, it would require a new

lateral pipeline from the Kamloops area, it involved extreme terrain and there was limited land

available in close proximity for storage facilities; (ii) Vancouver Harbour, which was eliminated

because there were no locations with coincident feasible pipeline access and no land for storage

facilities; (iii) Sturgeon Bank, which was eliminated because there was no feasible land available

in close proximity for storage facilities; (iv) Washington State, which was eliminated because it

involved a longer pipeline and complex regulatory issues (including additional permits required

by both Washington State and federal authorities); and, (v) Boundary Bay, which was eliminated

because of insufficient water depth.

[363] This left for consideration Roberts Bank. Trans Mountain conducted a screening level

assessment based on “desktop studies” of technical, economic and environmental considerations

for marine access, storage facilities and pipeline routing for a terminal at that location.

Page: 124

[364] After setting out the assumed technical configuration for the Roberts Bank dock, storage

and pipeline, Trans Mountain reviewed the engineering and geotechnical considerations. While

no unsurmountable engineering or geotechnical issues were identified, Trans Mountain’s

assessment showed that relative to the Westridge Marine Terminal, the Roberts Bank alternative

“required a significantly larger dock structure, a large new footprint for the storage terminal, a

longer right of way, and a greater diversion from the existing corridor. The extent and cost of

ground improvement necessary for the dock and storage terminal also presented a significant

source of uncertainty.”

[365] Trans Mountain then reviewed the relevant environmental considerations. Trans

Mountain’s assessment showed that while both Westridge and Roberts Bank:

… have unique and important environmental values, based on the setting the

environmental conditions at Roberts Bank appeared to be more substantial and

uncertain than at Westridge Terminal, particularly given the larger footprint

required for the dock and storage terminal. Without effective mitigation accidents

or malfunctions at Roberts Bank could result in greater and more immediate

consequences for the natural [environment].

[366] Trans Mountain then detailed the salient First Nations’ considerations. For the purpose of

the screening assessment, Trans Mountain assumed First Nation concerns and interests to be

similar to those for the Westridge Terminal and likely to include concerns for impacts on

traditional rights, environmental protection, and potential interest in economic opportunities.

[367] Trans Mountain then reviewed the land use considerations, concluding that relative to the

Westridge Terminal “the Roberts Bank alternative would result in a greater change in land use

both for the storage terminal and the dock structure. As surrounding development is less than that

Page: 125

for Westridge accidents or malfunctions at this location would be expected to affect fewer

people.”

[368] Trans Mountain’s assessment next looked to the estimated cost differences. While

operating costs were not quantified for comparison purposes, “given the additional dock and

storage terminal required these costs would be higher for the Roberts Bank alternative.”

[369] The assessment then looked at marine access considerations. While Roberts Bank offered

a shorter and relatively less complex marine transit:

[T]here is an existing well established marine safety system for vessels calling at

Westridge. Although Roberts Bank would allow service to larger vessels which

would result in potentially lower transport costs for shippers and lower probability

of oil spill accidents larger cargos result in potentially larger spill volumes. While

the overall effect on marine spill risk was not determined it is expected that larger

cargos would require a greater investment in spill response.

[370] Trans Mountain then set out the conclusions it drew from its assessment. While the

Westridge and Roberts Bank terminal alternatives each had positive and negative attributes,

especially when viewed from any one perspective, overall Trans Mountain’s rationale for the

Westridge Marine Terminal as a preferred alternative was based on the expectation that Roberts

Bank would result in:



Significantly greater cost—Trans Mountain estimated a $1.2 billion higher capital

cost and assumed higher operating costs for the Roberts Bank alternative.

A larger footprint and additional environmental effects—Roberts Bank would

result in an additional storage terminal with an estimated 100 acres of land

required, a larger dock structure with a 7 kilometre trestle, and a 14 kilometre

longer pipeline that diverges further from the existing pipeline corridor.

Page: 126

[371] I have set out Trans Mountain’s response to the Board at some length because of the

importance of this issue to Burnaby. In my view, two points arise from Trans Mountain’s

response to the Board.

[372] First, its response was not as conclusory as Burnaby’s submission might suggest. Second,

Trans Mountain’s explanation for eliminating a northern alternative and the six, southern

alternatives on the ground they were not technically or economically feasible was based on

factual and technical considerations well within the expertise of the Board. To illustrate, the

Board would have an understanding of the technical challenges posed when routing through high

alpine areas. It would also be familiar with considerations such as the expense and environmental

impact that accompany the construction of a longer pipeline, away from an existing pipeline

corridor, or a new storage facility. The Board would have an appreciation of the need for

coincident pipeline access and land for storage facilities and of the efficiencies that flow from

things such as the use of existing infrastructure and relationships.

[373] In relevant part, the Board’s conclusion on alternative means was: