Documentation:Open Case Studies/IRES/Trans Mountain Pipeline Expansion Project

Introduction

This case centres on the Trans Mountain Pipeline and Expansion Project (Trans Mountain) as a lens through which to learn about Canadian environmental assessment processes. Trans Mountain is one of the most difficult and complicated cases of environmental assessment in Canadian history. Because the infrastructure construction spans a wide geographical territory, the project brings to light contested understandings of federal, provincial, municipal and Indigenous jurisdiction. Further, environmental assessments require evaluating trade-offs between different priorities—for example national versus local interest, economic benefits versus environmental consequences. In the case of the Trans Mountain, many actors believe these trade-offs illustrate different visions of national identity and public interest.

Since it was proposed, Trans Mountain has been a case where disagreements and struggle are widespread. Indeed, the approval process has taken around 7 years and required two NEB report recommendations, it has been mired with many court challenges, including one that overturned the pipeline’s approval, and has resulted in thousands of people protesting and hundreds getting arrested. Though the pipeline runs through Alberta and BC, the issue has been taken up in national politics: the pipeline has changed ownership and been purchased by the federal government, and has entered the national political purview to become a federal election issue and a shorthand for discussions on energy and environmental policy and Indigenous sovereignty. Throughout the struggle, many disagreements have come to light: those surrounding the assessment process, including scoping, consultation and jurisdiction, as well as disagreements about project impacts, such as economic, employment and environmental consequences, both of which manifest discontent with assessment conclusions and key decision events.

In highlighting the various positions, actors and venues of contestation surrounding the issue of the Trans Mountain Expansion Project, this case hopes to make visible the underlying values, definitions, assumptions and aspirations that inform differing opinions. That is, choices about the approval process, assessment scoping and methodology, and decision priorities underpin contesting conceptualizations of the problem at hand, thereby informing what solutions are presented as valid and whose voices are heard in the decision-making process.

The goals of this case are to better understand the project approval and assessment processes and their limitations, to critically analyze what the role of assessment is, who the process is currently serving, what values are being prioritized, and why the process is so contested. We hope that fostering a discussion on these topics offers openings for critical thinking on power dynamics, and for denaturalizing the current process and envisioning decision-making improvements and/or alternatives.

The following sections explain the current state of the proposed Trans Mountain Expansion Project (TMX) and attempt to present key disagreements. First, the case summarizes the current state of TMX, including descriptions of current and proposed infrastructure, a comprehensive timeline of importance events since 2012, and key actors in the conflict to date. Next, the case elucidates five key disagreements surrounding the costs and benefits, as well as the consultation and decision-making process. These disagreements are around: economic benefits, employment opportunities, marine impacts, climate change contributions and consultation with Indigenous groups. Each disagreement also lists discussion questions designed to facilitate a deeper understanding of the causes and implications of the disagreements.

Background

This section gives background information on the Trans Mountain pipeline, including its history, facts about existing infrastructure and pipeline distribution of different oil products, as well as basic information about the proposed expansion. This section also includes a comprehensive timeline of the Expansion Project, starting in 2012 with Trans Mountain’s proposal. Finally, this section explains key actors and their roles in in the Trans Mountain process.

Overview of the Trans Mountain Pipeline

History

After oil was found in Leduc, Alberta, in 1947, the Trans Mountain pipeline was proposed to facilitate the expansion of the oil sands in Alberta, create foreign and domestic markets for oil that would otherwise be stranded in Alberta, and reduce Canada’s dependence on foreign oil. The pipeline was also justified as a strategic location for resources for both the US and Canada in the event of war with the Soviet Union. Trans Mountain was approved in 1951 (without undergoing environmental assessment or public consultation), and construction was completed in 1953. The pipeline runs from Edmonton to Burnaby, and was initially operated by the Trans Mountain Oil Pipe Line Company. This company was acquired by Terasen Pipelines Inc. (formerly known as BC Gas) in 1994, then purchased by Kinder Morgan in 2005 for $550 million, and most recently by the Canadian federal government in 2018 for $4.5 billion.

Existing Pipeline Infrastructure

The Trans Mountain pipeline is unique in that it was one of the first inter-provincial pipelines in Canada. The pipeline runs from Edmonton, Alberta, to Burnaby, BC, with around 1150 kilometres of pipe. There are five terminals, which are the Edmonton, Kamloops, Sumas (in Abbotsford), Burnaby, and Westridge Marine terminals. The terminals have varying storage capacity and storage tanks (Table 1). At the Sumas terminal, Trans Mountain connects to the Puget Sound Pipeline, which transports crude oil products to Washington, to either Ferndale or Anacortes. The pipeline has a relationship with refineries in Kamloops, Burnaby and Washington. Throughout the route there are 23 electric pumps that keep the flow of product consistent.

Table 1: Storage Capacity for each Trans Mountain terminal
Terminal	Number of Storage Tanks	Storage Capacity (barrels)
Edmonton	35	8,000,000
Kamloops	2	160,000
Sumas	6	715,000
Burnaby	13	1,685,000
Westridge Marine	0	0

Transportation

The Trans Mountain pipeline currently has the capacity to transport 300,000 barrels of oil per day – enough to fill 20 Olympic sized swimming pools every day – and product flows at around 8 kilometres per hour. Trans Mountain is the only pipeline in North America that has the capacity to transport crude or refined oil products.

Approximately 15% of the product that is transported through the pipeline is refined or semi-refined oil, consisting of gasoline and diesel, as well as jet fuel that goes to Vancouver’s airport. The remaining 85% of product is crude oil, which can be either light or heavy. Heavy crude consists of bitumen, which is diluted with either synthetic crude or condensate for the transport process.

Around 35% of the oil transported by Trans Mountain is used in BC, which includes all of the refined oil product. The remaining 65% is typically transported to the US, primarily through the Puget Sound Pipeline system but also through tankers loaded at Westridge Marine terminal in Burnaby. A total of 10% of product is exported through the use of a maximum of 5 tankers per month loaded at Westridge Marine, though the actual number of tankers varies greatly. Westridge Marine has not been loaded to capacity recently: during 2016 and 2017, there were only 14 and 18 total tankers respectively loaded at Westridge Marine terminal, transporting oil exclusively to the US. In 2018, of 39 tankers loaded, 12 went to China and two travelled to South Korea while the rest went to the US.

Chart 1 shows the type of oil refined: refined oil (15%) nd crude oil (85%). Chart 2 shows the destination of oil: 35% remains in BC and 65% is used internationally, either via the Puget Sound Pipeline system or tankers from Westridge.

Oil Spill History

Throughout its 66-year life, there have been 84 oil spills of varying sizes resulting from the Trans Mountain pipeline, mainly occurring on the mainland and at pump stations. The largest of these was in 1985, when 1587 m³ of oil spilled in the Edmonton Tank Farm. Since Kinder Morgan acquired the pipeline, the largest spill occurred in 2007 at the Westridge Marine Terminal, resulting in 323 m³ of oil spilled.

Overview of the Trans Mountain Expansion Project

In 2012, Kinder Morgan initiated the process of twinning the pipeline through the proposed Trans Mountain Expansion Project. This would triple the pipeline’s transport capacity to 890,000 barrels per day, and would increase tanker traffic associated with the project by seven. The expansion would require 980 kilometres of new pipe, and would reactivate 193 kilometres of currently existing but unused pipe from previous expansions. Trans Mountain plans for the new pipeline to mainly transport heavy crude oil, and the existing pipeline to transport refined products and light crude oil.

The proposed route largely follows existing infrastructure: 73% of the route would use existing pipeline infrastructure, 13% is proposed to follow other infrastructure like power lines or highways, and 11% would be new right of way. The expansion project also includes a plan to add 12 new pump stations and increase the storage capacity at the Edmonton, Sumas and Burnaby terminals by adding 19 storage tanks in total (Table 2). Additionally, the expansion includes the creation of a tunnel with 3 delivery lines running between the Burnaby terminal and Westridge Marine terminal. It also includes plans to upgrade and expand the Westridge Marine terminal by replacing the existing berth with three new berths to accommodate the increase in monthly tankers loaded from 5 to 34, which would account for around 15% of tanker traffic in the Port of Metro Vancouver.

Table 2: Proposed increase in storage tanks at Trans Mountain terminals
Terminal	Proposed Number of Added Storage Tanks	Currently Existing Storage Tanks	Proposed Total Number of Storage Tanks
Edmonton	4	35	39
Kamloops	0	2	2
Sumas	1	6	7
Burnaby	14	13	27

Key Actors

Government

Federal Government

Energy projects that cross provincial and/or international borders are considered to fall under federal jurisdiction. The role of the federal government in the energy project approval process is to make a final decision within three months of the NEB releasing their final recommendation that acts in the public interest. The federal government chooses either to order the NEB to issue a certification of public convenience and necessity, dismiss the application, or refer the decision back to the NEB for reconsideration. In their decision, the government also has a legal duty to consult with Indigenous nations impacted by proposed projects. While this duty can potentially be fulfilled by the NEB process, the federal government often has a consultation phase after the NEB finishes their recommendation. For Trans Mountain, the federal government’s consultation phases that occurred in 2016 and 2019 after NEB recommendations were led by the Minister of Natural Resources – Jim Carr in 2016 and Amarjeet Sohi in 2019.

Importantly, the federal government can regulate and mandate the role of the NEB. Under Prime Minister Harper, the role of the NEB changed (see below), and it was under these rules that the NEB evaluated the Trans Mountain Expansion Project.

The federal government has been a proponent of the Trans Mountain Expansion Project under both Prime Ministers Stephen Harper (Conservative, Prime Minister 2006-2015) and Justin Trudeau (Liberal, Prime Minister, elected 2015). The Trudeau government approved the pipeline in November of 2016, purchased the Trans Mountain pipeline and associated assets in August 2018, ordered the NEB to reconsider the project after the Federal Court of Appeals quashed the project’s approval in September 2018, and finally, re-approved the project in June of 2019.

Provincial Governments

Provincial governments have the responsibility to make decisions that protect their citizens, must fulfill their duty to consult with Indigenous nations, and cannot authorize unjustified infringement of Indigenous rights protected in the Constitution. According to the interpretation offered in the 2016 court case ruling of Coastal First Nations v. British Columbia (Environment), which centred on the Enbridge Northern Gateway pipeline, provincial governments cannot refuse an approval issued by the federal government for inter-provincial energy projects like Trans Mountain. However, they can add conditions and can refuse permits if these conditions are not being met.

With regards to TMX, the Albertan government have been strong proponents of the pipeline, both under Premier Rachel Notley (Alberta NDP, Premier 2015-2019) and Premier Jason Kenney (United Conservative Party, elected 2019). They particularly emphasize the benefits of the pipeline to workers in the oil and gas sector. Notley also stated that the construction of the pipeline expansion was necessary for her to be supportive of the federal carbon tax that Trudeau’s government hopes to implement; Kenney is strongly opposed to the carbon tax.

The BC government has taken multiple stances on the issue. BC Liberal Premier Christy Clark (Premier from 2011-2017) conditionally supported the pipeline after she considered it to have met five conditions concerning marine and land spill response, economic benefit sharing, Indigenous participation and environmental reviews. In the 2017 election, neither the BC NDP or the BC Liberals attained a majority, and the BC Green Party formed a coalition with the BC NDP. In forming government, these parties stated that they would use “every tool available” to oppose the pipeline.

Both the attorney generals of Alberta and BC were intervenors in the case of Tsleil Waututh Nation et al v. Canada, meaning they could participate and provide comment during the court proceedings.

Municipal Governments

With regards to large energy infrastructure projects like Trans Mountain, municipal governments have little formal power. In particular, the NEB has ruled that Trans Mountain could undergo seismic testing on Burnaby Mountain in 2014 without obtaining associated permits from the City of Burnaby; this decision was upheld in the associated 2015 court case of Burnaby (City) v. Trans Mountain Pipeline ULC. Municipal governments can instead pursue action through the court system and can participate in the NEB process by registering as intervenors.

The municipalities in the Greater Vancouver area, most notably the Cities of Vancouver and Burnaby have been active opponents of the pipeline. Many cities in Metro Vancouver, as well as Abbotsford and Kamloops, registered and were accepted as intervenors in the NEB process. The Cities of Vancouver and Burnaby also brought charges against the NEB and Trans Mountain in various cases including the Tsleil Waututh Nation et al. v. Canada court case against the approval of TMX.

National Energy Board (NEB)

The National Energy Board (NEB) was created in 1959 by the Diefenbaker government and is an independent energy regulator governed by the National Energy Board Act, as well as the Canadian Environmental Assessment Act and Species At Risk Act. The NEB’s role is to act in the national interest to assess energy projects that cross provincial or international borders, make recommendations on their approval, and regulate their construction and operation. The NEB also regulates tolls and tariffs for pipelines, as well as imports and exports of oil and gas products. The NEB’s decisions are legally binding and can be challenged in the Federal Court of Appeals. The NEB process (see below) is centred around hearing processes and releasing a recommendation report.

NEB process, spanning from pre-hearing, hearing and post-hearing processes

The federal government can amend the role of the NEB. This was the case in 2012, when Prime Minister Stephen Harper changed some of the rules governing the NEB so as to give the elected government more control in the approval process. In particular, since 2012, the federal government makes the ultimate decision on a project’s approval, the NEB just provides a recommendation. Further, in response to the delays in the NEB’s evaluation of the Enbridge Northern Gateway Pipeline, Harper also introduced legislation that shortened the assessment recommendation process, instituting an 18-month time limit, and only allowed experts and “directly affected” people to participate in the NEB’s review, rather than all “interested parties”. Trudeau has also proposed changes to the NEB process.

The Trans Mountain pipeline was assessed under Harper’s revisions of the NEB. The NEB’s assessment of Trans Mountain was based on evaluating the need, commercial feasibility, environmental and socio-economic effects, impacts on Indigenous people and landowners, proposed route, and spill response. In their process, the NEB twice recommended the approval of the pipeline subject to conditions (157 conditions in 2016, 156 in 2019) largely focused on reducing negative socio-economic impacts, emergency preparedness, and financial responsibility. In 2018, the NEB’s first recommendation was evaluated by the Federal Court of Appeals as being so flawed that the federal government could not reasonably rely on it in making a decision on the approval of the pipeline. In 2019, the NEB again recommended the pipeline project’s approval, and has been ordered by the federal government to issue a certificate of public convenience and necessity.

Discussion Questions on the NEB
What do you think is the difference between an “interested party” and a “directly affected part”? Who would you consider to be directly affected by TMX?

Oil and Gas Industry

The oil and gas industry are, in general, powerful proponents of the pipeline. They especially emphasize the benefits to domestic oil producers that TMX would bring by diversifying market access. Important actors within the oil and gas industry include oil and gas companies like Trans Mountain, and lobby groups like the Canadian Association of Petroleum Producers.

The oil and gas industry also has a prominent role in the NEB, with many current members coming from a background in the industry. The industry also has influence in shaping policy decisions through lobbying power; the legitimacy of the fossil fuel industry creates opportunities to build connections with key politicians and decision-makers.

Indigenous Nations and Groups

The Trans Mountain pipeline has been identified as affecting the lands of 133 Indigenous and Métis groups, each of which has a different perspective and stance on the project. Some Indigenous nations and groups support the pipeline: Trans Mountain has signed mutual benefit agreements with 43 Indigenous groups, and some have expressed interest in purchasing the pipeline. Others support the pipeline but want to negotiate a better deal. Still others strongly oppose the pipeline and withhold their consent for the project; for example, representatives from 6 nations and groups sued the government in the Tsleil Waututh Nation et al v. Canada court case that quashed the pipeline approval. These are: Tsleil Waututh, Squamish, Coldwater, Stó:lo, Secwepemc, and Upper Nicola Band. The Tsleil Waututh Nation has also indicated that they will again pursue legal action after the federal government re-approved the pipeline expansion project in 2019.

Environmental Non-Governmental Organizations (ENGOs) and Community Groups

ENGOs are generally opposed to the pipeline expansion project, largely mobilizing around concerns about oil spills, Indigenous rights and climate change. Some important ENGOs include Raincoast Conservation Foundation and the Living Oceans Society, who were part of the court case of Tsleil Waututh Nation et al v. Canada. Stand.Earth, Dogwood, and 350Vancouver, among others, who were active in the protests against Trans Mountain. Other community groups also play an important role in the opposition to the pipeline and often have a more sustained presence than ENGOs. Community groups include BROKE (Burnaby Residents Opposed to Kinder Morgan Expansion), as well as Indigenous-led movements such as Coast Protectors, Protect the Inlet, and Mountain Protectors.

Disagreements

This section explains key disagreements between Trans Mountain supporters and opponents surrounding pipeline, which are around: economic benefits, employment benefits, marine impacts, climate change, and consultation. Taken together, these disagreements contribute to an explanation of why Trans Mountain is such a contentious issue that has been elevated to the national purview. Each section includes some discussion questions designed to enhance critical thinking and facilitate an analysis of root causes of disagreements and the current state of energy politics.

Economic Benefits

"The objective of the project is not to increase our oil production, it's to broaden our options. With TMX, Canada will be less dependent on the United States, which is currently our only customer, and we'll have access to the growing Asian markets. [...] We strongly believe that having more options and more markets puts Canada in a stronger, strategic position to create good middle-class jobs and invest in our shared future." - Justin Trudeau, 2019, on the approval of the Trans Mountain Expansion Project

Harnessing the economic benefits of the pipeline is one of the strongest and most compelling arguments used by pipeline proponents. Proponents highlight economic benefits stemming from market diversification and expansion, and emphasize that transporting oil products to a port will bring benefits to Canadian companies as well as to Canadian governments. With his most recent approval, Trudeau has also asserted that not only do the economic benefits justify any significant adverse environmental impacts, but these economic benefits are integral to environmental policy, as the federal government will re-invest any profits in makes through the pipeline into renewable energy and climate action.

Disagreements about the economic benefits of the Trans Mountain expansion project were highly contested in the NEB process, with numerous intervenors expressing concern over Trans Mountain’s methods for economic analysis. Disagreements about economic benefits have also been highlighted in the media and magnified through the federal and Albertan governments’ claims.

Trans Mountain Fiscal Benefits Estimates

In their statements to the NEB, Trans Mountain used a 2015 report by the Conference Board of Canada, a non-partisan think tank, to assert that during the construction phase, TMX would generate $1.2 billion in federal and provincial government revenues, and $3.3 billion in federal and provincial government revenues over the first 20 years of operation. The Conference Board of Canada estimates that the majority of the construction fiscal benefits will accrue from personal income tax, and the majority of benefits associated with operation will come from corporate tax. On their website, Trans Mountain uses a different figure from the Conference Board of Canada’s 2014 report and estimates that the pipeline expansion would generate a total of $46.7 billion in fiscal benefits for the first 20 years of the pipeline’s operation. These fiscal benefits would accrue due to: lowering the differential between heavy and light oil; taxes on shareholder dividend payments; personal and corporate income tax from TMX profit re-investment in Canadian oil and gas; and personal income and indirect tax associated with increased tanker traffic. Further, Trans Mountain cites a Scotiabank report to indicate that Trans Mountain will “inject” $7.4 billion into the Canadian economy.

Table 3: Revenue Estimates Used by Trans Mountain
Source (both based on Conference Board of Canada)	Federal and Provincial Revenue in first 20 years of Operation (CDN$ billion)
Trans Mountain NEB submission	3.3
Trans Mountain website	46.7

Alternative Estimates

In a collaborative study with the Simon Fraser University Centre for Public Policy Research, Goodman and Rowan, economic consultants, contest Trans Mountains’ estimates for the fiscal benefits and provincial revenue in BC. They argue that Trans Mountain exaggerates BC fiscal benefits by a factor of 2-3. The authors assert that the Trans Mountain pipeline would only create $35-45 million in BC tax revenue and $60 million during the construction period, rather than Trans Mountain’s estimated $46-60 million and $131 million respectively. They assert that taxes on Trans Mountain would amount to less than 1% of current municipal revenues.

Table 4: Estimates of BC Tax Revenue
Source	BC Tax Revenue during (CDN$ million)	Construction period BC tax revenue (CDN$ million)
Goodman & Rowan	35-45	60
Trans Mountain	46-60	131

Economist Robyn Allan has argued that in their assessment, the NEB used an unreasonably narrow scope that did not account for upstream or downstream socio-economic effects and therefore excluded potentially negative economic impacts. Such economic risks have been laid out in the Tsleil-Waututh Nation’s assessment of Trans Mountain, and include a risk to the Nation’s real estate market due to impaired views and less attractive landscapes largely due to operations at Westridge Marine Terminal, as well as a risk to revenue from tourism, which is threatened by Trans Mountain’s associated on-water hazards, perceived pollution and physical obstruction. The Tsleil-Waututh Nation also asserts that Trans Mountain could harm their subsistence fishing economy through shoreline erosion from increased tanker traffic. According to Allan’s analysis, if the NEB had adequately considered any economic risks in their assessment, they would have concluded that Trans Mountain would have net negative economic impacts.

Distribution of costs and benefits   

One of the conditions for Premier Christy Clarke’s approval of the Trans Mountain pipeline expansion project set in 2012 is that BC receives a fair share of economic benefits. The Conference Board of Canada asserts that BC would receive 12.1% of the fiscal benefits and Alberta would receive 41.5%. In their statements to the NEB, Trans Mountain calculated that BC would receive around 33% of fiscal benefits from construction, 88% of fiscal benefits from pipeline operations and 35% of municipal revenue. Meanwhile, for the same categories, Trans Mountain estimates that Alberta would receive around 20%, 18% and 13% respectively. Goodman and Rowan assert that BC is not receiving a fair share of the economic benefits of the pipeline expansion project, thereby violating Clarke’s condition set in 2012. They calculate that BC would receive less than 2% of total revenue from the project, with Alberta receiving around 31% and oil sands producers retaining approximately 68% of profits associated with the project. The Trudeau government’s purchase of the pipeline and associated assets has added an additional dimension to debates on the distribution of costs and benefits, as Canadian taxpayers more broadly (as opposed to company shareholders) will hold both the project's economic risks and benefits.

Assumptions and uncertainty

Estimating future economic benefits requires many choices and assumptions. For instance, analysts may disagree on how to define the scope of analysis, the stability of future exchange rates, or even the extent to which historical conditions are useful models for future supply, demand and price. Although estimates are often reported in similar metrics, key differences in these underlying assumptions may help explain discrepancies in reported values.

Discussion Questions on Economic Benefits

What would a fair distribution of costs and benefits look like? How do we explain these disagreements and discrepancies in estimates surrounding economic benefits? What assumptions underlie these disagreements about economic benefits? Which argument do you find more compelling? What additional kinds of evidence would you like to see to inform your decision? Many arguments rely on forecasts for future energy markets, but the uncertainty is large. Given an uncertain future, how do you think we should estimate future benefits?

Employment Benefits

"This project has the potential to create thousands of solid middle-class jobs for Canadians. People in BC, Alberta and right across the country would have more opportunities to earn a good living" - Justin Trudeau, 2019, on the approval of the Trans Mountain Expansion Project

Pipeline proponents highlight how Trans Mountain will strengthen employment for the middle-class, especially considering that oil sands workers have been hard-hit in recent times. This theme is a central part of the Government of Alberta's messaging on Trans Mountain: a recent national advertising campaign was titled ‘Keep Canada Working’ . The disagreement over Trans Mountain is also sometimes portrayed as a fight of jobs vs. the environment.

Employment estimates vary widely, and were contested during the NEB process, where intervenors expressed concerns about the methodologies that Trans Mountain used to estimate employment benefits, as well as concerns over who would obtain job opportunities. The NEB decided that the Conference Board of Canada’s methodologies were sufficient, and emphasized that employment would be “key benefits,” particularly for Indigenous and local communities. Disagreements about employment are also highly contested in the media.

Trans Mountain Estimates

The employment estimates that Trans Mountain cited on their website and during both NEB processes (in 2016 and 2019) come from two Conference Board of Canada reports on the benefits of Trans Mountain.

In their 2014 report, Burt and Crawford estimate that Trans Mountain would create a minimum of 2,500 and a maximum of 3,000 direct, indirect and induced jobs per year across Canada during the first 20 years of operation. Of these, they estimate that between 342 and 443 would be direct jobs, 242-313 of which would be in BC, with the remaining 100-130 in Alberta.

The Conference Board of Canadians estimate that the construction phase of the project will create 58,037 person-years of employment, of which 28,202 person-years would be direct employment. They estimate that the majority of construction employment would be in BC, which would receive 35,864 person-years of employment, while Alberta would receive 14,632 person-years of employment. How this translates into the metric of jobs per year depends on the duration of the construction period. On their website, Trans Mountain indicates that 58,037 person-years of employment would translate to 15,000 jobs per year during construction, which implies a construction period of around 4 years. Using Trans Mountain’s initial estimate of a 3-year construction period, the 58,037 person-years of employment would translate to 19,346 jobs per year, with around 9,400 direct jobs per year, and 12,000 direct, indirect and induced jobs per year in BC.

Table 5: Construction Employment Estimates (assuming 3-year construction period)
Source	Person-years of employment	Jobs per year	Direct jobs per year	BC direct jobs per year
Conference Board of Canada	58,037	19346	9401	6892

In their 2015 report, the Conference Board of Canada uses the maximum estimate from the earlier Burt and Crawford analysis. They add to their earlier report by extrapolating the additional direct, indirect and induced jobs that would result from dividend payments that shareholders spend in the Canadian economy, re-investment of profits from TMX into Canadian oil and gas, and additional tanker traffic. They conclude that there will be 34,000 jobs per year over the first 20 years of operation created in addition to the earlier estimate of 3,000 jobs, resulting in a total of 37,000 direct, indirect, and induced jobs created per year of operation. They also assess the distribution of employment benefits and conclude that around 55% of total employment generated by TMX would be in Alberta, 24% would be in BC, and the remaining 21% would be in other provinces. In their report to the NEB, Trans Mountain cited the estimated maximum number of jobs created from the first report (65,184 person-years of employment and 443 direct jobs), and cited the creation of 58,037 jobs during construction. They also reported the distribution of jobs, with BC receiving the majority of jobs from construction and operation. The job estimates were the same in the 2016 and 2019 NEB reports.

Earlier reports commissioned by Kinder Morgan reports estimate that there would only be 90 long-term and full-time employees, 50 of which would be located in BC. This includes no additional employment in the oil sands because they assume that Trans Mountain has no influence on production levels.

Table 6: Employment Benefits Estimates for first 20 years of operation
Source	Total Jobs Created per year (direct, indirect, induced)	Direct jobs created	BC direct jobs created
Conference Board of Canada minimum	2514	342 per year	240 per year
Conference Board of Canada maximum	3258	444 per year	313 per year
Conference Board of Canada maximum + additional (from dividend payments, re-investment and tanker traffic)	37,179	3614 per year	884 per year
Tera Consultants	NA	90 long-term jobs	40 long-term jobs

Alternative Estimates & Criticism   

Trans Mountain’s employment estimates have also been a source of debate, with critics questioning methodologies for estimating the number of jobs created, and the nature of those jobs (long term or transient construction). Economist Robyn Allan has argued that politicians like Justin Trudeau and Rachel Notley often cite the 15,000 construction jobs created when voicing their support for the project without examining how it was calculated. Goodman and Rowan argue that the Conference Board of Canada’s employment estimates are exaggerated by a factor of three. They estimate that there would be a maximum of 800 jobs/year created in BC over the first 20 years of operation, rather than the 2000 jobs/year calculated by the Conference Board of Canada. Similarly, Goodman and Rowan estimate that construction would create 4000 jobs/year rather than 12,000 jobs/year. One reason for these differences is methodological: in calculating alternative estimates for job creation in BC, Goodman and Rowan use a methodology that bases jobs estimates on Energy East and Enbridge pipeline estimates, which they contrast to the Conference Board of Canada's methodology based on project expenditures and revenues. In addition, the two reports differ in their assumptions on the relative labour and capital intensity of pipeline operation: Goodman and Rowan contend pipelines are capital intensive and highly automated, indicating that operating costs are fixed and are independent from use and therefore from employment creation.

Table 7: Alternative estimates of employment benefits
Source	Construction jobs/year in BC	Operations jobs/year in BC
Goodman & Rowan	4,000	800
Trans Mountain	12,000	2,000

Discussion Questions on Employment Benefits
How would you differentiate between direct, indirect, and induced jobs? How do we explain these disagreements and discrepancies in estimates around employment opportunities? What assumptions underlie different estimates about employment? Which argument do you find more compelling? What additional kinds of evidence would you like to see to inform your decision?

Marine Impacts

"I understand [BC's] desire to protect your coastline and your ocean, and I share it. Our top priority is making sure there is no spill in the first place, but we know we need to be prepared for anything" - Justin Trudeau, 2019, on the approval of the Trans Mountain Expansion Project

Concern over the impacts of marine shipping are among the most controversial, particularly because they highlight the distribution of risks associated with the project, with greater risk of a large oil spill concentrated in BC. Indeed, oil spills were originally the biggest concern of groups mobilized against the pipeline, though these groups have shifted their rhetoric to focus more on highlighting Trans Mountain’s greenhouse gas emissions and contribution to climate change. Project proponents and opponents disagree on the the likelihood of a spill, spill severity, and the extent to which natural systems or emergency preparedness strategies could limit the effects of an oil spill.

Disagreements about the impacts of Trans Mountain on marine ecosystems were contested in the NEB process, with many intervenors expressing concern about oil spills. They were also one of the main points that arose in the 2018 court case; the Federal Court of Appeals ruled that the NEB erred in their treatment of marine impacts and produced a deficient report, making the approval of the pipeline illegitimate. Oil spills have also featured heavily in the media, especially with relation to the endangered Southern Resident Killer Whales.

Effects of Marine Shipping

While the NEB included the impacts of marine impacts in its initial recommendation report, they decided that project-shipping was not included in the Trans Mountain proposal, and thus would only be assessed under the National Energy Board Act and not under the Canadian Environmental Assessment Act (CEAA) – that is, the NEB would not base their recommendation upon marine impacts, rather simply provide the information to the government. The NEB argued that it was not the regulatory authority on marine shipping and implied that marine shipping was not ‘incidental’ to Trans Mountain, meaning that the NEB did not consider marine shipping to be part of the ‘designated project’ – only components deemed part of the ‘designated project’ must be analyzed under the framework of the CEAA.

The NEB’s initial assessment of marine shipping was that it would cause significant adverse effects on Southern Resident Killer Whales, and on Indigenous cultural use of these whales, because these whales are on the brink of extinction. Besides this, the Board evaluated the impacts of marine shipping to be insignificant, particularly because they consider shipping to create only temporary disturbances, and because they consider oil spill risks to be very small. Because the NEB did not consider shipping to be incidental to Trans Mountain’s expansion project, they concluded that the expansion project overall did not have any significant adverse effects. The Tsleil-Waututh Nation and Stó:lo applicants, among others, contest the NEB’s assertion that shipping only has a temporary impact, arguing that such an impact is permanent. In particular, the Tsleil-Waututh Nation asserts that the increased shipping would generate acoustic disturbance, impair views, disturb the quiet, create on-water hazards and physical obstruction, engender the perception of pollution, obstruct, and lead to shoreline erosion. They state this would negatively affect their cultural work, housing market and subsistence economy, as well as prevent access to spiritual sites and decrease fish populations. Similarly, the Stó:lo people state that Trans Mountain would result in daily interruptions to access to fishing sites.

Marine shipping was one of the key components of the 2018 Tsleil-Waututh Nation et al v. Canada court case, where the Tsleil-Waututh Nation, as well as Raincoast Conservation Foundation and the Living Oceans Society argued that the NEB failed to assess marine shipping under the Canadian Environmental Assessment Act (CEAA) and the Species At Risk Act (SARA). The Court ruled in favour of the claimants and overturned the project’s approval. The Court decided that both the NEB or the federal government did not adequately explain their scoping decision or include mitigation measures, and therefore did not follow the criteria of the CEAA and SARA. As such, the Court ruled the NEB report to be “so deficient that it could not qualify as a ‘report’ within the meaning of the legislation,” and that the federal government was wrong to rely upon it when making their decision. In response to the court’s decision, the NEB’s second report considers marine shipping as part of the project and evaluates it under CEAA and SARA frameworks. As such, the NEB judged Trans Mountain to have significant adverse effects on Southern Resident Killer Whales and the associated Indigenous cultural use of these whales, though they note that Trans Mountain has a small impact on the whales but any addition to marine shipping would be considered significant due to the dire condition of the Southern Resident Killer Whales. They also consider an oil spill could have significant effects, and that greenhouse gas emissions associated with marine vessels is likely to be significant. As ordered by the court, pursuant to SARA, the NEB recommended measures to mitigate the effects of Trans Mountain on species at risk instead of stating that they did not have authority as they did in the initial report. However, the conclusions of the NEB remained the same – they recommended the approval of the project, stating that the benefits of the project justify the significant adverse effects.

Effects of Oil Spills

Marine shipping is inherently tied to oil spills, and an oil spill is generally considered one of the biggest risks that BC fronts with regards to the Trans Mountain expansion project. There are many disagreements about the nature of this risk, including surrounding the probability, costs and effects of oil spills.

Probability of an Oil Spill

The NEB maintains that there is a very low probability of a project or marine spill that would have significant adverse effects.  They therefore find that the level of risk is acceptable. In contrast, Gunton and Broadbents’ report commissioned by the Tsleil-Waututh Nation calculates that a large spill will occur in the next 50 years with a 57% chance, and a worst-case spill – using Trans Mountain’s definition of an oil spill releasing over 16,000 m³ of oil – will occur in the next 50 years with a 29% chance. Further, Gunton and Broadbent assert that Trans Mountain’s analysis for the likelihood of an oil spill do not match industry records, and contains methodological errors that put into question the reliability of the analysis. Among these weaknesses are: insufficient sensitivity analysis, lack of confidence ranges, ineffective communication, and reliance on inaccurate data.

Oil Spill Cleanup

There are also disagreements about the nature of bitumen and its ability to be cleaned up. Trans Mountain maintains that a bitumen spill has very similar properties to a crude oil spill, and that bitumen is unlikely to sink in water in the short to medium timeframe, by which time they hope that emergency responders would recover most of the spilled oil. In contrast, the report commissioned by the Tsleil-Waututh Nation states that an oil spill would be very difficult to clean up, in part because oil spreads very quickly and could foul all basins of the Burrard Inlet. According to this report, diluted bitumen is likely to submerge when spilled, as the volatile condensate would evaporate. Bitumen is especially likely to submerge if it mixes with sediment, which would likely be the case in the spring and summer. Concern over bitumen submerging was repeated by many intervenors in the NEB process.

Costs of an Oil Spill

Trans Mountain estimates that a worst-case scenario oil spill could cost $100-300 million, and could adversely impact the fishing, tourism and boating industries. Trans Mountain states that pursuant to the Pipeline Safety Act, they have set aside $1 billion to cover oil spill costs. They consider themselves responsible for land spills, and spills at Westridge Marine Terminal, but state that ship owners are responsible for ship-based spills. In their report on the economic impacts of Trans Mountain in BC, Goodman and Rowan estimate oil spill costs to determine whether or not there is an even allocation of costs and benefits. They calculate that a major rupture would cost $1 billion-5 billion – over 10 times Trans Mountain’s estimated cost. They argue against Trans Mountain’s estimates, stating that damage and clean-up costs are highly correlated with population density, making clean-up very costly in Metro Vancouver. They conclude that the costs will exceed the benefits for BC in a bad or worst-case scenario.

Another estimate for oil spill costs comes from a report by Gunton and Broadbent commissioned by the Tsleil-Waututh Sacred Trust Initiative; they estimate that a medium-sized oil spill would cost $2.2 billion for cleanup, and a large oil spill would cost up to $4.4 billion. Gunton and Broadbent also indicate that costs of an oil spill cleanup could exceed Trans Mountain’s insurance compensation funds by up to $3 billion, creating uncertainty about who pays; the Sacred Trust Initiative asserts that provincial and federal governments, as well as local residents would have to foot parts of the bill.

Table 8: Oil Spill Cleanup Cost Estimates
Source	Minimum Oil Spill Cleanup Cost	Maximum Oil Spill Cleanup Cost
Trans Mountain	$100 million	$300 million
Goodman and Rowan	$1 billion	$5 billion
Gunton and Broadbent	$2.2 billion	$4.4 billion

Finally, the non-profit Conversations for Responsible Economic Development also contends that oil spills would affect people employed in coastal industries such as tourism, agriculture and port trade. They state that up to 43% of coastal jobs could be lost in a worst-case scenario spill.

Effects of an Oil Spill

According to Trans Mountain’s submission to the NEB, an oil spill could influence salt marshes, eelgrass beds, kelp forests, and organisms that depending on these ecosystems, as well as migratory birds. Trans Mountain and the NEB both highlight that an oil spill could result in potential adverse effects depending on the magnitude and emergency response, however the environment would likely return to pre-spill conditions eventually. They also highlight that there are potential adverse effects on human health, but these would likely be mild and short-lived, and likely only impact a small portion of the population such as emergency responders. The NEB also decided that Trans Mountain used appropriate ecological risk assessment methods, despite protest from multiple intervenors. In contrast, a report by the Tsleil-Waututh Nation asserts that oil would disperse quickly in the Burrard Inlet, likely fouling all basins and washing up on the shore. The report states that this would result in toxic air emissions from the evaporation of volatile condensates added to bitumen that could affect 1 million residents in a worst-case scenario. According to the authors, such a spill would also cause the mortality of up to 500,000 birds and could disrupt food-webs, leading in environmental collapse. Stranded oil also increases the mortality of finfish and shellfish embryos. Finally, the Tsleil-Waututh Nation asserts that the consequences of an oil spill prevent their community from accessing ancestral knowledge, in part because they would not be able to eat their traditional and ceremonial foods.

Discussion Questions on Marine Impacts
What type of risks are acceptable for whom? How do we explain these disagreements and discrepancies in estimates for oil spill cost and effects? What assumptions underlie this disagreement? Which argument do you find more compelling? What additional kinds of evidence would you like to see to inform your decision?

Climate Change Impacts

"We've also been listening carefully to Canadians and hearing about their desire for a cleaner future. That's why we've decided that every dollar the federal government earns from this project will be invested in Canada's clean energy transition. [...] So to those who want sustainable energy and a cleaner environment, know that I want that too. But in order to bridge the gap between where we are and where we're going, we need money to pay for it." - Justin Trudeau, 2019, on the approval of the Trans Mountain Expansion Project

Climate change has increasingly become central to understandings of Trans Mountain. Many anti-pipeline ENGOs, community organizations and social movements have cited climate change as a main rallying point against the pipeline, though they initially criticized the project mainly due to oil spill risks. The Trudeau government declared a climate emergency the day before approving the Trans Mountain pipeline in 2019. Pipeline proponents typically either argue that the benefits of the pipeline expansion outweigh the (arguably) insignificant contributions to climate change, or that the pipeline’s economic benefits are necessary for climate action, as they will be invested in the transition to clean energy.

Trans Mountain’s contributions to climate change or climate action have been hotly contested, for example in the NEB process, in the courts, and in the media. During the NEB process, many intervenors challenged the NEB’s decision to not include upstream and downstream emissions estimates. This resulted in the City of Vancouver taking the NEB to court, however the court case was dismissed in 2014 without reason by the Federal Court of Appeals. Protestors arrested in 2018 at Burnaby Mountain have also brought climate change into the discussion by pleading a defense of necessity – that they had to block construction in order to stop climate change and therefore should not be charged with criminal contempt of court and sentenced to up to 2 weeks in prison. This court case was originally dismissed and is currently being appealed.

NEB Process and Trans Mountain Emissions Estimates

Trans Mountain estimates that it will have a minimal effect on Canada’s greenhouse gas emissions. In the NEB process, they cite that construction would generate around 1,020,000 tonnes of CO_2e, almost 90% of which would come from land clearing. During operation, Trans Mountain estimates that the expansion pipeline would generate 407,000 tonnes of CO_2e per year, or 0.058% of total Canadian emissions, due to electricity usage in Alberta. Trans Mountain estimates that the pipeline would actually decrease greenhouse gas emissions in British Columbia by 323 tonnes of CO_2e per year.

In the NEB process, no upstream or downstream emissions from TMX were included – the NEB argued that such estimates would be “incidental” rather than “meaningful” for the environmental assessment process, because Trans Mountain is not directly tied to either upstream or downstream activities. Other pipeline environmental assessments have included upstream and downstream emissions. In their 2019 report, after they were instructed to consider the impacts of increased tanker traffic in the Salish Sea, the NEB report included emissions associated with tankers: Trans Mountain estimated emissions of 68,100 tonnes of CO_2e per year, while Environment and Climate Change Canada estimated 76,200 tonnes of CO_2e emitted per year. The NEB judged this discrepancy to be negligible.

In both 2016 and 2019, the NEB judged Trans Mountain’s emissions to likely be significant, and instated a condition that Trans Mountain must purchase carbon offset materials so as to make the construction process carbon neutral.

Upstream and Downstream Emissions Estimates

Upstream and downstream emissions estimates differ widely. While the Trudeau government has stated that they are unable to conclude whether or not greenhouse gas emissions will increase as a result of Trans Mountain, others have made different estimates. Energy economists Jaccard and Hoffele estimate that Trans Mountain would create 8.8 million tonnes of CO_2e from bitumen production and TMX operations, as well as 71.1 million tonnes of downstream emissions from refining and distributing bitumen and from combustion.

For some, Trans Mountain has also brought into question Canada’s ability to meet its Paris Accord Intended Nationally Determined Contributions (INDC) emissions reductions targets. The government maintains that the pipeline would not impact Canada’s ability to meet the Paris targets, which makes sense considering that they do not consider upstream and downstream emissions to be significant and the operations emissions over 20 years would take up less than 1% of Canada’s Paris targets carbon budget. However, according to climate scientist Simon Donner, over a 20-year life-span, Trans Mountain would consume 34% of Canada’s Paris budget for a 1.5˚ increase in global temperatures, and over 50 years, Trans Mountain would take up to 100% of a carbon budget associated with the 1.5˚C limit, and 83% of Canada’s 2˚C Paris budget. Donner’s analysis assumes that building Trans Mountain would either increase or maintain the current oil sands production levels.

Discussion Questions on Climate Change

What temporal and spatial boundaries surrounding climate change are being set by different actors? What would be your scope if you were to assess the impacts of TMX? How do we explain these disagreements and discrepancies in estimates for contribution to climate change? What assumptions underlie this disagreement? Which argument do you find more compelling? What additional kinds of evidence would you like to see to inform your decision?

Consultation  

"I would like to thank the Minister [Sohi] and all Indigenous communities for their participation in and commitment to this process. At the end of the day, we listened and we are acting on what we heard." - Justin Trudeau, 2019, on the approval of the Trans Mountain Expansion Project

Indigenous-led groups against the pipeline highlight that they consider the project to violate Article 32 of the United Nations Declaration on the Rights of Indigenous People, which states that states must obtain free, prior and informed consent of Indigenous people prior to approving resource development on their lands. Meanwhile, the Trudeau government touts itself as committed to nation-to-nation reconciliation with Indigenous peoples, and is pursuing opportunities to sell the pipeline to Indigenous groups.

Contestation over the consultation process has largely been situated in the courts. In 2018, the Federal Court of Appeals ruled that the Canadian government had failed to fulfill its duty to consult with Indigenous people, and the Court quashed the approval of the pipeline – other resource development projects like the Enbridge Northern Gateway pipeline faced a similar fate. Canada states that their second consultation process has fixed previous errors, but the Tsleil-Waututh Nation has committed to challenge the project and its consultation process in court again.

Understanding Jurisdiction in a Settler Colonial State   

Jurisdiction in Canada and British Columbia is complicated particularly due to settler colonialism and its implications for relationships between the Canadian state and Indigenous people. Before Europeans came to North America, what is now known as Canada was home to millions of Indigenous people and thousands of Indigenous nations. Through the process of settler colonialism, European settlers violently displaced and dispossessed Indigenous people, and sought to destroy and replace Indigenous political, economic, legal, spiritual and cultural institutions. In Canada, this has led to genocide against Indigenous people. This genocide is described as historical but also continuous, currently being committed against Indigenous people for example due to the violence that manifests in Missing and Murdered Indigenous Women and Girls. In this way, settler colonialism is a structure, not an event, and the violence it entails is ongoing, not historical.

Settler colonialism is important to understand for questions of jurisdiction. Settler colonialism is based on logics that imagine land as empty of legitimate inhabitants prior to European conquest, thereby granting sovereignty to settlers and justifying land theft and forced displacement of Indigenous people onto reserve lands, which sometimes through treaties. In BC, the provincial government largely did not enter into treaty agreements with Indigenous nations because they did not recognize the right to negotiate land use, and today almost all of BC remains unceded land, meaning it is not governed by a treaty and has never been formally ceded by Indigenous nations to Canada. As a result, jurisdiction and Indigenous rights and title in BC are highly contested and most are decided after lengthy court challenges. Contending with settler colonialism as an ongoing structure of violence is important for the Trans Mountain case and the question of jurisdiction. Among other things, settler colonialism informs: how Canadian colonial laws rather than Indigenous laws are upheld and protected in the courts; how processes of consultation are conducted (as defined by the Canadian government rather than Indigenous nations); to what extent Indigenous title and rights are upheld; to what extent Indigenous free, prior and informed consent is respected, for example with regards to resource extraction projects; what kinds of relationships to resources, lands and waters are fostered and viewed as normal, natural, or inevitable.

Legal precedence about consultation and Aboriginal title

Indigenous people have rights that are protected for example in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Among other rights, this Declaration states that Indigenous people have the right to self-determination, autonomy, self-government, as well as the right to traditional and ancestral territories. For resource extraction and energy projects, UNDRIP requires States to obtain free, prior and informed consent from all nations that would be affected by a project.

While Canada ratified UNDRIP in 2016, the country has not implemented it as of 2019. Recognizing historical and ongoing violence against Indigenous people that has been experienced different by each Indigenous nation, Canada has however committed to reconciliation between colonial governments and Indigenous people, built through unique ‘nation-to-nation’ relationships with each Indigenous nation. Canada has a legal and moral duty to consult with Indigenous people on a nation-to-nation basis. This duty to consult, as well as the Canadian understanding of Aboriginal rights and title have largely been determined through precedent-setting court cases that occurred only in the past 20 years – questions of jurisdiction, Aboriginal rights and title, and the duty to consult are evolving and constantly being revisited. These court cases have informed the Trans Mountain case, particularly because the consultation process was one of the main issues contested in the 2018 Tsleil-Waututh Nation et al v. Canada case that overturned the pipeline’s approval. Aboriginal rights were formally entrenched in Canada’s constitution in the Constitution Act of 1982, after the Calder et al v. Attorney General British Columbia case in 1973 affirmed that Aboriginal treaty rights existed at the time of contact. Section 35 of the Constitution “recognizes and affirms” Aboriginal rights. In the precedent-setting 1997 Delgamuukw v. British Columbia case, Aboriginal title was decided to be an Aboriginal right protected in the constitution. This court case defined Aboriginal title and what was necessary to prove it, and also introduced the Crown’s duty to consult. The duty to consult was further elucidated in the 2004 case of the Haida Nation v. British Columbia (Minister of Forests), which decided that the duty to consult is a legal obligation that arises if a project impacts actual or potential Aboriginal rights. Further, this case decided that the duty to consult requires a reasonable effort from governments for Indigenous participation and accommodation and does not require consent from Indigenous nations to be fulfilled. The 2014 Tsilhqot’in Nation v. British Columbia decision added to the duty to consult by ruling that governments must seek consent from Indigenous nations and must justify infringement if no consent is given. Following the case of Gitxaala Nation et al v. Canada (2016), the duty to consult also requires that consultation provides adequate opportunity for concerns to be addressed through a two-way dialogue specific to each First Nation. Further, the government must also disclose an assessment of the strength of Indigenous claims to rights and title, as well as evidence that the Crown fulfilled its duty to consult. Finally, the Clyde River (Hamlet) v. Petroleum Geo-Services Inc. (2017) case decided that the duty to consult triggers a special public interest such that a project that violates Aboriginal or treaty rights cannot be in the public interest. This case also decided that a regulatory agency can fulfill the duty to consult if stated well enough in advance.

An overview of these precedent-setting cases is presented below.

Consultation Process Design   

Canada’s consultation process had four phases: early engagement, NEB hearings, consideration by the Governor in Council and consultation during regulatory authorization if the project is approved. Canada identified 130 Indigenous groups whose rights and interests are potentially adversely impacted by the Trans Mountain expansion project.

The consultation process was questioned during the 2018 Tsleil-Waututh Nation et al v. Canada court case. In particular, claimants argued that the consultation framework was unilaterally imposed by Canada without input from Indigenous participants, that inadequate funding was provided to Indigenous nations for their participation, and that the NEB process was inadequate for fulfilling consultation because it did not allow crow examination, discriminated against oral traditional evidence, did not allow for sufficient time for Indigenous groups, and did not consult on issues that would be considered at NEB hearings. The Federal Court of Appeals ruled that Canada’s consultation process was sufficient if it was properly executed. In particular, the court relied on the 2016 Gitxaala Nation et al v. Canada case as well as the 2017 Clyde River (Hamlet) v. Petroleum Geo-Services Inc. case to decide that the Crown and the NEB can decide on consultation infrastructure.

Indigenous Concerns & the Failed Duty to Consult

In October of 2017, the Federal Court of Appeals heard the case of Tsleil-Waututh Nation et al v. Canada. Canada argued that it had addressed the flaws in the consultation process by extending the consultation process by 4 months, sharing the Crown’s opinion on strength of claims to Aboriginal title, and issuing an Order In Council explaining why the duty to consult had been met. The Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band, Upper Nicola Band, Stk’emlupsemc Te Secwepemc, and Stó:lo applicants expressed concern over the NEB process being insufficient because the NEB did not include specific conditions or findings, had restrictive timelines, and were unable to assess impacts to Indigenous rights. Many nations also raised concern over the NEB’s exclusion of project-related shipping from the scope of the NEB process. In August of 2018, the Federal Court of Appeals decided that in the case of Tsleil-Waututh Nation et al v. Canada, Canada failed to fulfil its legal duty to consult with Indigenous people, particularly during phase 3 of the consultation. This phase was the consideration by the Governor in Council of accommodations for outstanding concerns not addressed in the regulatory process, and lasted from when the NEB released its recommendation until the federal government made its decision on the pipeline expansion. The Court decided that the consultation was not a meaningful 2-way dialogue, and the Crown did not adequately respond to the concerns raised by Indigenous participants. For instance, at the penultimate consultation meeting, Canada told Indigenous participants that it did not consider Trans Mountain a high risk to Indigenous rights and title. The Court also judged Canada to be unwilling to disagree with the NEB’s report and recommendation, and mistakenly stated that the government could not impose additional conditions. In these ways, the Court judged Canada to fail to fulfill its duty to consult with Indigenous people, and overturned the government’s approval of the pipeline expansion project.

An Example: Stó:lo Applicants’ Arguments

The Stó:lo applications created a report that listed 89 recommendations to the NEB and Trans Mountain, including those about restoration and emergency response. They also express concern about Trans Mountain’s respect of their traditional knowledge and permanent interruption to harvesting and sacred sites due to increased tanker traffic – they stated Trans Mountain had ignored their maps of traditional harvesting areas and cultural sites, and had not met them to discuss cultural site management plans with enough urgency. Additionally, the applicants contended that the Crown’s analysis ignored their Aboriginal right to fish.

In response to their concerns, the Crown referred applicants to the NEB report that stated the impacts to Stó:lo harvesting and cultural sites would be minimal. Further, the Crown did not adopt any of the 89 recommendations the Stó:lo had laid out in their report, and the day before the government approved the pipeline, the Crown sent a letter stating that Stó:lo concerns would be relayed to decision-makers.

The Federal Court of Appeals used this evidence to judge that the government had not fulfilled its duty to consult with Stó:lo peoples, in particular because they did not adequately respond to or address Stó:lo concerns and because they did not include the Stó:lo right to fish in their analysis.

Discussion Questions on Consultation

What do you think about the Crown's duty to consult and the distinction between consultation and consent? How do we explain this disagreements about what meaningful consultation should look like? What assumptions underlie this disagreement? What power dynamics inform this disagreement? Which argument do you find more compelling? What additional kinds of evidence would you like to see to inform your decision?

Conclusion

This case aims to provide a comprehensive overview of the history, key events and important actors involved in the project to date. This case has also summarized five key disagreements surrounding TMX that help explain why the pipeline is so controversial and has garnered widespread struggle in many venues. These disagreements are in the economic benefits, employment benefits, marine impacts, climate change impacts, and consultation process.

These disagreements bring to light underlying fundamental value disagreements that inform contesting conceptualizations of the potential costs and benefits of Trans Mountain, and also influence choices about assessment scoping, methodology and process. Thus, taken together, these disagreements inform fundamentally opposing interpretations of whether or not the project is in the public or national interest.

This case has attempted to use the Trans Mountain Expansion Project to foster a deeper understanding of the environmental assessment process and its limitations. In beginning to unpack the contesting opinions surrounding Trans Mountain, we hope that this case has facilitated critical analyses on the actions and positions of different actors, how they are differently situated within the assessment process, and the underlying definitions, assumptions and aspirations that underpin different conceptualizations of TMX and inform energy decisions.

Ultimately, this case brings to light questions of environmental assessment techniques, of power dynamics and inclusion in approval processes, and those of collective decision-making practices across spatial jurisdictions and temporal scales that envision and construct certain types of futures. The case of Trans Mountain is still evolving, and the future of pipeline and energy politics in Canada remains to be seen.

General Discussion Questions

1. What do you think should be done? What solutions do you propose?
2. How should collective decisions be made, particularly across such a spatial scale? What does it mean to resolve disagreements in the context of a democracy?
3. What goals, priorities, values and assumptions are underlying the actions of different actors?
4. Which impacts/disagreements are most relevant from the perspective of the key actors?
5. How are different sides interpreting/framing/defining the problem and therefore the solution? How are different actors trying to shift the framing?
6. What futures are different actors envisioning in their advocacy?
7. What is collective interest? How do you make collective decisions?
8. How should the decision-making process be done?
9. Whom is the current decision-making process serving? Which stakeholders are considered to have power, legitimacy, urgency?
10. What is considered in the public/national interest?

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When re-using this resource, please attribute as follows: developed by Gabriela Doebeli (Department of Earth, Ocean and Atmospheric Sciences) and Amanda Giang (Institute for Resources, Environment & Sustainability) at the University of British Columbia.