Trans Mountain Expansion Project 2016
“[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.
However, the Board did consider greenhouse gas
emissions from Project construction and operation.
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
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.