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Changes made to Trans Mountain environmental certificate after provincial reconsideration process

Changes focus on event of a marine spill
Signage outside the Trans Mountain worksite at the intersection of Lougheed Highway and Gaglardi Way.

A provincial reconsideration process has resulted in changes being made to Trans Mountain's Environmental Assessment Certificate, the Ministry of Environment and Climate Change Strategy and the Ministry of Energy, Mines and Low Carbon Innovation announced.

The province says the reconsideration was a result of a federal Court of Appeal decision in 2018 and associated decisions by the B.C. Court of Appeal in 2019. 

"Following the 2018 federal Court of Appeal determination that the National Energy Board (NEB) excluded project-related marine shipping from aspects of its review, the NEB undertook a reconsideration process and released a reconsideration report," the province stated in a news release on Feb. 24, 2022. 

"The federal government then used this 2019 reconsideration report to inform its decision to approve the project again. In September 2019, the B.C. Court of Appeal, in two cases, decided that because the ministers who issued the provincial certificate relied on the NEB's assessment, they should have the opportunity to consider the changes in the NEB's reconsideration report and determine if any changes to the certificate conditions, or the addition of new ones, are necessary, within the limits of provincial jurisdiction.

"Upon direction from the ministers in March 2020, the Environmental Assessment Office (EAO) undertook a review of the changes in the 2019 NEB reconsideration report on aspects of the project related to marine shipping. The EAO considered the portions of the 2019 reconsideration report that differ from the initial 2016 report to determine if any changes to the certificate conditions previously approved by ministers in 2017, or the addition of new ones, were required (within the scope of the provincial reconsideration process and the limits of provincial jurisdiction)." 

The Environmental Assessment Office says the following criteria was set to analyze NEB reports and submissions recieved through the reconsideration process that would help determine what changes should be made to the certificate: 

  • Whether the issues raised pertained to differences between the two NEB reports
  • Whether the Province had jurisdiction to make changes to EAC conditions or add new ones
  • Avoiding unnecessary duplication with respect to existing Environmental Assessment Certificate or NEB conditions, regulatory mechanisms, NEB recommendations to Governor in Council, and/or federal government accommodation measures and initiatives

During the reconsideration process, the Environmental Assessment Office invited Sḵwx̱wú7mesh Úxwumixw (Squamish Nation), səlilwətaɬ (Tsleil-Waututh Nation) and the City of Vancouver to participate.

Marine Indigenous Nations were also engaged alongside federal government departments, Trans Mountain and other parties, and held a 45-day public comment period prior to making recommendations to ministers.

The province says, as a result, the following changes are being made to Trans Mountain's Environmental Assessment Certificate, with a focus mainly on events following a marine spill. 

  • Amending Condition 35 (Fate and Behaviour of Bitumen Research), requiring Trans Mountain to provide research updates every five years, and add local coastal governments to the parties requiring consultation on the research
  • A new condition requiring a human health risk report that includes: identifying exposure pathways in the event of a marine spill
  • Identifying roles and responsibilities of local, provincial and federal authorities in the event of a marine spill
  • Consulting with Indigenous Nations, local governments and relevant agencies to develop the report that will provide important information as the federal government and its agencies prepare plans that address the potential impact to human health from spills
  • A new condition requiring Trans Mountain to develop a shoreline baseline data report, developed in consultation with various parties, that consolidates data at hypothetical incident locations along the shipping route that will strengthen restoration and recovery in the event of a ship-source marine spill
  • Adding Snuneymuxw First Nation to the list of Aboriginal Groups - Marine Shipping
  • Adding a definition for Potentially Affected Coastal Local Governments

Students voice opposition to Trans Mountain pipeline work near Burnaby school

Burnaby students are voicing their opposition to the Trans Mountain expansion project as work gets underway less than 100 metres from a local high school.

A rally was held at the intersection of Lougheed Highway and Gaglardi Way on Feb. 18 as heavy construction machinery pushed forward with Burnaby Mountain Secondary School visible in the background. 

"We're just building an action against the Trans Mountain pipeline expansion," Grade 12 student at Alpha Secondary Lilah Williamson told the NOW

"So, as students, it's really important for us because obviously climate change is going to have such a negative impact on our future. But it's also so dangerous you [Trans Mountain] building pipelines 100 metres from the school when there could be a spill and a fire anywhere." 

A petition, signage and an inflatable T-rex were all on hand, with cars also honking to show support. 

Signs from Trans Mountain were also visible on construction site perimeter fences, stating "any person who obstructs access to this site is in breach of an injunction order and maybe subject to immediate arrest and prosecution." 

"I think they're just interested in pushing this pipeline through as fast as they can. And they're really not listening to all the public opposition that there is," Williamson said. "But I think it's really important also that more people start to know about what's going on because I think normal people in Burnaby don't necessarily know that there's this dangerous pipeline being built right to their city. And it's going to destroy all of our collective future if it's completed.

"So I think it's really important that just more people become aware of it and then join this fight to stop it. So we become so loud, they can't not hear us." 

"Construction on the Trans Mountain Expansion Project is now underway in Burnaby. Currently, activities in the vicinity along our right-of-way include surveying, flagging, staking, preparing temporary workspace, removing trees and vegetation and installing signage.  We will work as quickly as practicable to complete our work with as minimal disruption as practicable to our neighbours," Trans Mountain said in an emailed statement to the NOW.

"Trans Mountain respects the right to peaceful, lawful expressions of opinions. There is a BC Supreme Court injunction in place that prevents the blocking or obstructing of access to Trans Mountain’s work sites and work areas throughout British Columbia."

Two men and three women involved in anti-Trans Mountain pipeline protests in Burnaby were jailed earlier this week after pleading guilty, while another goes to trial in June after a not-guilty plea.

All were charged with criminal contempt of court for allegedly breaching a court injunction aimed at preventing disruption of work at the federally owned Burnaby Trans Mountain Pipeline expansion project (TMX).

That injunction was granted in March 2018 and expanded two months later.

All are considered part of the so-called "Brunette River 6": a nondenominational, multi-faith prayer circle. The group is made up of Burnaby and Vancouver residents, who came together to oppose tree cutting by TMX, as well as stream and urban salmon river degradation they believe is being caused by the company.

As she sentenced Dr. William Winder, 69, and Zain Haq, 21, on Feb. 15, B.C. Supreme Court Justice Shelley Fitzpatrick put other would-be injunction breakers on notice that sentences will increase.

“This court is becoming increasingly frustrated with this ongoing disobedience,” she said.

Like many others charged, neither Winder or Haq had a previous criminal record.

Tree-sitter pleads guilty

Crown Prosecutor Ellen Leno told Fitzpatrick that Winder, a retired UBC French professor, was arrested on Sept. 22 after he was removed from a tree at a Trans Mountain worksite in Burnaby.

Leno said tree removal for pipeline work was stopped on Sept. 13 when workers realized there were people in the trees. 

Winder was 50 to 60 feet up a tree, the court heard. An injunction recording was played to him and he was given the opportunity to leave.

When Winder did not leave, police arrived with a cherry picker and ascended to remove him. They found him with a bicycle u-lock around his neck and other devices, fastening to the tree.

“This is a sophisticated and planned event,” Leno said of Winder’s tree sitting. “It was designed to allow a long interference. It’s not easy to do.”

She said prolonging an offence aggravates a breach.

The Crown asked for 21 days in jail for Winder but he countered with 14 days and 100 hours of community service. Fitzpatrick agreed with the Crown.

The judge said there has been proper notice by the Crown of increasing sentences for protest situations with aggravating circumstances.

“You’re the first,” she told Winder.

Winder said he was motivated to act as “western values have had the unintended consequence of bringing us to the edge of climate collapse.”

He told Fitzpatrick the injunction and applicable law predates the examples of the climate crisis the world finds itself in, that the 2021 fires and flooding are examples of the effects of climate change in B.C.

“It is a catastrophe waiting to happen,” Winder said.

“The crime of ecocide has made its way into the public’s general understanding,” he added.

While the courts have heard much about the upholding of the rule of law in the Trans Mountain protester breach cases, Winder said climate change could mean the annihilation of the human species and the breakdown of the rule of law.

In response to Winder’s saying he respected the rule of law, Fitzpatrick said, “that is highly questionable in these circumstances . . . sophistry for saying he’s defending his rule of law.”

Sleeping dragon protest lock

Leno said Haq was arrested on Sept. 24 after he was found sitting at the same worksite. Another protester was nearby.

Leno said the Extinction Rebellion protest group’s national action and strategy coordinator was found with a device known as a sleeping dragon. Protesters use the hard-to-remove devices to lock themselves into place.

“He was not locked into it,” Leno said.

The injunction was read and both were given a chance to leave. Haq chose to remain and was arrested.

Haq said he would his dedicate his time in jail to those who died from extreme weather events in B.C. last year. The Crown asked for two weeks behind bars; the judge agreed but said she would have given a stiffer sentence if requested.

SFU professor pleads not guilty

It was Dr. Tim Takaro, a Simon Fraser University professor of health sciences, who pleaded not guilty. He goes to trial June 13-16.

It’s alleged he breached the injunction after he spent months in a different set of Burnaby trees along the Brunette River to protest the cutting of more than 1,300 trees to clear a path for the pipeline.

Takaro was arrested Nov. 26 after police brought in a cherry picker to remove him.

The other members of the Brunette River 6 are Catherine Hembling, 79, Janette McIntosh, 58, and Ruth Walmsley, 61. They pleaded guilty to the charges Feb. 14. Fitzpatrick sentenced them to 14 days in jail each.

- with files from Jeremy Hainsworth, Glacier Media