Inadequately assessed human health impacts of Trans‐mountain Pipeline Expansion project TMEP (C00276) filed with the NEB

File OF‐Fac‐Oil‐T260‐2013‐03 60          July 4, 2019

Submitting Comment on:  A.  Condition compliance            B. Detailed route approval 

Title: Health Officers’ Council of BC calls health impacts assessment inadequate

When the NEB issued the Certificate of Public Convenience and Necessity (Certificate) OC‐065 for the Trans Mountain Project on June 21 it stated, “The Board reminds Trans Mountain that the issuance of Certificates does not automatically reinstate previous Board decisions or orders required to commence or resume construction activities,” and asked for public comment on “how the NEB should proceed with regulatory processes for the Trans Mountain Expansion Project (Project), including compliance with Project conditions and approval of the detailed route.

” Trans Mountain should not rely on previously issued decisions and orders to start or resume Project‐ related construction activities, and they should not be authorized to restart where they left off on August 30, 2018. Since that time, the Health Officers Council of BC has called the health impacts assessment of the project inadequate and have requested that the Government of British Columbia conduct,  “an adequately resourced, independent, comprehensive health impact assessment that includes cumulative impacts of the Trans‐mountain Pipeline Expansion project”. [follow link: https://www.healthofficerscouncil.net/positions‐and‐advocacy/resolutions/]

Community‐level health impacts assessment should be included in the detailed route hearings. The unremedied deficiencies and absence of cumulative health impacts assessments are clearly sufficient reasons to re‐start the route hearings from the beginning, with improved notifications to affected landowners, communities, reserves and territories should be issued, remedying the deficiencies of the original process.

In terms of consultation with Indigenous Peoples, Trans Mountain proposes to build a staging site for pipeline construction at a site located within the City of Abbotsford at the base of Sumas Mountain, called Lightning Rock. There is already a tank farm for the existing pipeline on the site. Lightning Rock and its surrounding area have been sacred to the Stó:lō people for centuries. The area has been home to the people of the Sumas First Nation for 10,000 years, and represents a spiritual centre with a rich oral history.

The consultation of the Sumas Nation concluded without NEB condition 77 for “Archeological and Cultural Heritage Assessment ‐ Lightning Rock” being completed and is deficient on its face. Without the consent of the Sumas Nation, this project must not proceed through their lands. 

The Federal Court of Appeal verdict that quashed the NEB report found that: “Canada failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants [plaintiffs against the Trans Mountain approval] so as to explore possible accommodation of those concerns. The duty to consult was not adequately discharged.”

“[M]eaningful consultation is not simply a process of exchanging information. Where, as in this case, deep consultation is required, a dialogue must ensue and the dialogue should lead to a demonstrably serious consideration of accommodation. The Crown must be prepared to make changes to its proposed actions based on information and insight obtained through consultation. [para 564] 

 Building a pipeline through their lands without Indigenous peoples’ free, prior and informed consent violates Aboriginal rights and contradicts Canada’s commitment to upholding the Truth and Reconciliation Commission’s calls to action, including the imperative to implement the United Nations Declaration on the Rights of Indigenous Peoples.

 Since Canada’s purchase of the project in 2018, its ministers have spoken publicly many times that the project must and will be built. There was never any chance there would be a “no” on a project purchased for $4.5 billion.  

Natural Resources Minister Sohi, December 21, 2018, “Nothing has demonstrated our government’s support for the energy sector more than our decision to purchase the Trans‐Mountain Pipeline expansion. A $4.5 billion dollar investment in our province’s future and our country’s future.”  

Prime Minister Justin Trudeau, February 1, 2018, “That pipeline is going to get built,” Trudeau said. “We will stand by our decision. We will ensure that the Kinder Morgan pipeline gets built.”

Prime Minister Justin Trudeau, May 7, 2019, “The only way to do it is to do it responsibly, and that’s what we’re doing. The need for it, and the national interest, is clear.”

At no time has there been a reasonable apprehension that the federal government might cancel the project based on consultation with Indigenous peoples if they could not be accommodated, rendering the entire consultation exercise a return to the “note‐taking” style of consultation noted as a fatal deficiency in Gitxaala Nation v. Canada, 2016 FCA 187.

Detailed Route Hearings Must be Re‐Started from the Beginning

At a minimum, hearings that had not concluded at the time of the court ruling should go back to the notification stage. Since the approval was quashed, there have been leadership changes in affected Indigenous communities, and municipal elections in October 2018 mean there are new elected representatives in local and regional governments and school boards. In the 10 months or so since everything stopped landowners may have changed or their circumstances may have changed. Finally, the Health Officers of BC had not spoken about the inadequate health impacts assessment.

It's not enough just to notify people who had a hearing, they should try to reach people who did not have a hearing but should have the opportunity for one now. To attempt to address some of the many deficiencies in the first process, all segments of the route should go back to notification stage.

Any application by Trans Mountain Corporation to carry on where they left off on August 30, 2018 should be rejected and route hearings and permit applications should start again with deficiencies of the previous process remedied.

Sincerely,

Tim K. Takaro, MD, MPH, MS.

Associate Dean for Research, Faculty of Health Sciences, Simon Fraser University, Burnaby, BC.