Trans Mountain Expansion Project 2016

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“[D]ownstream effects are more effectively assessed and regulated by the jurisdictions where

the use occurs.”

As a result and as fully detailed in Ruling No. 25, the Board did not consider these upstream and

downstream effects in its assessment of the Project.

49

However, the Board did consider greenhouse gas

emissions from Project construction and operation.

10.1.4

Responsibilities under other Acts

Fisheries Act

Under subsection 35(1) of the

Fisheries Act

, no person shall carry on any work, undertaking or activity that

results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that

support such a fishery, unless such work, undertaking or activity is exempted, as per subsection 35(2) of the

Fisheries Act

.

The Board, and Fisheries and Oceans Canada (DFO) entered into a Memorandum of Understanding (MOU)

on 16 December 2013. Under the MOU, the Board has the responsibility to assess potential impacts to

fisheries from proposed NEB-regulated pipeline and power line applications, and notify DFO if any such

works may likely require authorization under the

Fisheries Act

. DFO would then be responsible for issuing

any

Fisheries Act

authorization(s). The MOU does not apply to marine terminals or marine shipping.

For this Project, the Board was responsible for reviewing Project works related to the construction of

the pipeline and facilities (excluding the WMT), and refer any works to DFO that the Board determines

may likely require authorization under the

Fisheries Act

. For a detailed discussion of this review, please

see section 10.2.5 - Freshwater Fish and Fish Habitat. The Board was also responsible for conducting an

environmental assessment of the potential effects of the Project (including the expansion of the WMT) on

marine fish and fish habitat, as per the requirements of CEAA 2012 (section 10.2.14). The responsibility to

review the potential effects from the expansion of the WMT on marine fisheries, under the

Fisheries Act

,

remains the responsibility of DFO.

The Board also conducted an environmental assessment, under the NEB Act, of the potential effects on

marine fish and fish habitat from Project-related marine vessels (Chapter 14, section 14.3.1 – Marine Fish

and Fish Habitat). The responsibility to ensure that Project-related marine vessels, as well as all other

marine shipping vessels, are in compliance with the

Fisheries Act

remains the responsibility of DFO.

Species at Risk Act

Pursuant to the

Species at Risk Act

(SARA), the Board is required to identify the adverse effects of projects

that are contained within the CEAA 2012

Regulations Designating Physical Activities

on each listed wildlife

species and its critical habitat. The Board must also ensure that measures are taken to avoid or lessen those

effects, and to monitor them.

On 23 April 2014, the Board notified the Ministers of Environment and Climate Change Canada (ECCC),

DFO, and Parks Canada Agency that the Project, if approved and constructed, may affect a number of

species listed on Schedule 1 of the SARA (SARA-listed species) and/or their habitat.

In meeting the Board’s obligations under the SARA, the Board assessed the environmental effects of the

Project on the SARA-listed species. The Board identified the potential adverse effects that the Project might

have on listed wildlife species and their critical habitats. The Board considered the mitigation measures

proposed to avoid or minimize those effects, and the plans to monitor their effectiveness. The Board also

considered all reasonable alternatives (e.g., routing, design, mitigation) to reduce the impact on species’

critical habitat. In addition to Trans Mountain’s proposed measures, the Board would also impose conditions

requiring Trans Mountain to implement measures that are consistent with any applicable recovery

strategies and action plans.

Under the MOU with DFO, the Board has the responsibility to determine if proposed projects would impact

aquatic species at risk, and to notify DFO of such impacts. DFO would then determine if permitting may be

required under the SARA.

49 The City of Vancouver sought leave to appeal Ruling No. 25. Leave to appeal was dismissed by the Federal Court of Appeal on 16 October 2014.