PROJECT AGREEMENT FOR THE TRANS MOUNTAIN PIPELINE EXPANSION PROJECT IN ALBERTA AND BRITISH COLUMBIA

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PREAMBLE

The National Energy Board(NEB) has commenced a review pursuant to the Canadian Environmental Assessment Act, 2012 (CEAA 2012) and National Energy Board Act (NEB Act) for Trans Mountain Pipeline ULC’s (the Proponent) proposed Trans Mountain Pipeline Expansion Project (the Project).

The Project consists of an expansion of the existing Trans Mountain Pipeline System (TMPL) between Edmonton, Alberta and Burnaby, British Columbia increasing its capacity on the TMPL system from the current 300,000 barrels per day (bbl/d) to 890,000 bbl/d. The Project would include 994 km of new pipeline, new and modified facilities including pump stations and tanks, and three new berths at the Westridge Marine Terminal in Burnaby, British Columbia.

Although the increased marine shipping to and from the Terminal is not part of the Project proposed by the Proponent, the NEB has determinedFootnote 1 that potential environmental and socio-economic effects of those marine shipping activities, including the potential effects of accidents or malfunctions that may occur, are relevant to the Board’s consideration of the application under the NEB Act.

The NEB is a quasi-judicial administrative tribunal and nothing in this Agreement should be construed as permitting activities that will undermine the quasi-judicial function of the NEB process, including compliance with the principles of natural justice.

Nothing in this Project Agreement (the Agreement) fetters the powers, statutory authorities and functions of federal departments/agencies and their respective Ministers.

The signatories to this Agreement (the Parties) commit to work together to facilitate an effective, accountable, transparent, timely and predictable federal review in relation to the Project and to contribute to fulfilling the Crown’s duty to consult Aboriginal groups.

1.0 PURPOSE

The purpose of this document is to provide detailed information pertaining to the federal review process where the NEB is the responsible authority for an environmental assessment (EA) pursuant to CEAA 2012 and will conduct a hearing process as defined by the NEB Act.

2.0 ROLES AND RESPONSIBILITIES

The following federal departments and agencies have identified an interest in the Project, and will participate in the federal review through the NEB hearing process in order to obtain information required to discharge their roles and responsibilities associated with the Project, to the extent possible. This will allow for relevant information with respect to their areas of responsibility and/or expertise, including effects of increased marine shipping, to be reflected in the official hearing record.

  • Responsible authority: The NEB will ensure that an EA and regulatory review are conducted and a Report is submitted to the Minister of Natural Resources (the Minister);
  • Federal authorities (FAs): Fisheries and Oceans Canada (DFO)Footnote 2, Transport Canada (TC), Environment Canada (EC), Natural Resources Canada (NRCan), Health Canada (HC), Aboriginal Affairs and Northern Development Canada (AANDC), Canadian Coast Guard (CCG), Vancouver Fraser Port Authority (VFPA), and the Parks Canada Agency (PCA) may be in possession of specialist or expert information or knowledge with respect to the Project;
  • Regulatory departments and agency: DFO2, EC, PCA, VFPA, and AANDC may have regulatory and statutory duties in relation to the Project;
  • With regard to potential environmental or socio-economic effects from the increase in marine shipping that would result from the Project, TC, EC, VFPA and DFO  possess specialist or expert information and have registered as Intervenors in the hearing process to provide expertise in these areas as appropriate, including on the adequacy of mitigations proposed and on the significance of any potential residual adverse effects;
  • AANDC has advisory responsibilities in relation to the Project to support consistency with the Government of Canada’s Whole of Government approach to Aboriginal consultation activities;
  • NRCan will manage the Submission by the Minister to Treasury Board for a decision and Order by the Governor-in-Council (GiC) on the project; and,
  • The Major Projects Management Office (MPMO) will provide oversight and advice throughout the entire federal review in relation to the Project to ensure adherence to the service standards and roles and responsibilities of all Parties as described in the Agreement. Additionally, the MPMO will play an oversight role throughout the federal review in regard to Aboriginal consultation.

3.0 Aboriginal Consultation

The Parties are committed to a Whole of Government approach to Aboriginal consultation that is integrated with the NEB process, to the extent possible.

Where applicable, the terms and conditions of all existing agreements or protocols and/or memorandums of understanding between the Crown and Aboriginal groups will be respected.

Aboriginal engagement and consultation roles and responsibilities are identified in Annex III.

4.0 TIMELINES

Timelines identified in the Agreement represent the time expected to be taken by federal departments and agencies in carrying out their respective tasks. The timelines do not account for time taken by the Proponent to provide information or undertake a study at the request of the NEB during the hearing process, as approved by the Chairperson, or regulatory departments during the regulatory phase. Timelines also do not take into account extensions that could be ordered under the NEB Act. The target timelines for the federal review are as follows and as outlined in the Gantt chart in Annex II:

  • Submission of the NEB Report to the Minister setting out its recommendation on a Certificate, as per the NEB Act – 15 months after the day on which the applicant has, in the NEB’s opinion, provided a complete application.
  • Submission of the recommendation by the Minister to Treasury Board for decision by the Governor-in-Council (GiC) on the project – issuance of the GiC Order setting out its decision on the project – Within 3 months from the submission of the NEB’s Report to the Minister.
  • Regulatory action by the NEB in accordance with the GiC Order – Within 7 days after the Order is made.
  • Regulatory decisions pursuant to the Canadian Environmental Protection Act, 1999 – 90 days from the issuance of the GiC Order assuming submission of a complete application no later than September 1, 2014 and no additional consultation is required.
  • Regulatory decisions pursuant to the Fisheries Act – 90 days from receipt of a complete application submitted in accordance with, and subject to, the requirements of the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations assuming the GiC decision has been made and no additional consultation is required.
  • Regulatory decisions pursuant to the Canada National Parks Act – 140 days from receipt of a complete application assuming the GiC decision has been made and no additional consultation is required.
  • Regulatory decisions pursuant to the Indian Act - 90 days from receipt of a Band Council Resolution and/or easement agreement being reached between the parties, assuming the GiC decision has been made, no additional consultation is required, and all other requirements have been met.

5.0 SIGNATORIES

The Parties hereto have signed the Agreement, in counterpart, on the dates indicated below.

Annex I

The following table sets out the target timelines for the federal review of the Project. Milestone deadlines within the Hearing Order apply to every participant in the hearing process and if a Party needs an extension, the Party must seek leave of the NEB and explain why an extension ought to be granted.  All Parties acknowledge that extensions to deadlines may not be possible because of the legislated time limit.

Key Milestones and Service Standards for the Environmental Assessment, Regulatory Review and Aboriginal Consultation
  Milestone Lead Support as Needed TimelineFootnote 3/
Completion Date
1 Submit the CPCN application Proponent   December 16, 2013
2 Issue Hearing Order and List of Participants NEB   April 2, 2014
3 Round 1 information requests to the Proponent NEB   April 17, 2014
4 Release draft conditions for information purposes NEB   April 17, 2014
5 Round 1 information requests to the Proponent NRCan/EC/
AANDC/PCA
MPMO May 12, 2014
6 Respond to Round 1 NEB information requests Proponent   May 14, 2014
7 Respond to Round 1 intervenor information requests Proponent   June 18, 2014
8 File motions regarding adequacy of Proponent’s responses NRCan/EC/
AANDC/PCA
MPMO July 4, 2014
9 Round 2 information requests to the Proponent NEB   July 4, 2014
10 Respond to intervenor motions regarding IR response adequacy Proponent   July 11, 2014
11 Respond to the Proponent’s comments on intervenor motions NRCan/EC/
AANDC/PCA
MPMO July 16, 2014
12 Respond to Round 2 NEB information requests Proponent   July 21, 2014
13 Oral hearings to collect Aboriginal traditional evidence NEB   August 25 to September 5, 2014
14 File supplemental evidence Proponent   September 4, 2014
15 Oral hearings to collect Aboriginal traditional evidence NEB   October 16 to October 24, 2014
16 Oral hearings to collect Aboriginal traditional evidence NEB   November 13 to November 28, 2014
17 File studies and information on Route 1&2 and supplemental evidence Proponent   December 1, 2014
18 Round 3 information requests to the Proponent NEB   January 9, 2015
19 Round 2 information requests to the Proponent NRCan/EC/
AANDC/PCA/
TC/DFO
MPMO January 9, 2015
20 Oral hearings to collect Aboriginal traditional evidence related to Route 1&2 NEB   TBD, if required
21 Respond to Round 3 NEB information requests Proponent   February 3, 2015
22 Respond to Round 2 intervenor information requests Proponent   February 10, 2015
23 File motions regarding adequacy of the Proponent’s responses NRCan/EC/
AANDC/PCA/
TC/DFO
MPMO February 19, 2015
24 Respond to intervenor motions regarding IR response adequacy Proponent   March 5, 2015
25 Respond to the Proponent’s responses on intervenor motions NRCan/EC/
AANDC/PCA/
TC/DFO
MPMO March 10, 2015
26 File letter of comment HC MPMO March 16, 2015
27 File written evidence NRCan/EC/
AANDC/PCA/
TC/DFO
MPMO May 1, 2015
28 Information requests to intervenors by other intervenors or the Proponent NRCan/EC/
AANDC/PCA/
TC/DFO, Proponent
MPMO May 25, 2015
29 Respond to information requests from intervenors or the Proponent NRCan/EC/
AANDC/PCA/
TC/DFO
MPMO June 15, 2015
30 Round 4 information requests to Proponent NEB   June 19, 2015
31 Information requests to Intervenors NEB   June 19, 2015
32 Respond to Round 4 NEB information requests Proponent   July 6, 2015
33 Respond to NEB information requests NRCan/EC/
AANDC/PCA/
TC/DFO
MPMO July 6, 2015
34 Release draft conditions for comment NEB   July 7, 2015
35 File reply evidence Proponent   July 10, 2015
36 File affidavits swearing evidence, notices of intent to present oral summary argument and/or reply argument Proponent, NRCan/EC/
AANDC/PCA/
TC/DFO
MPMO July 10, 2015
37 File written argument-in-chief, including comments on draft conditions Proponent   July 24, 2015
38 Oral hearings begin to hear the Proponent’s oral summary argument NEB, Proponent   July 2015
39 File written argument-in-chief and reply to Proponent,  including comments on draft conditions NRCan/EC/
AANDC/PCA/
TC/DFO
MPMO August 6, 2015
40 Oral hearings continue to hear intervenors’ oral summary argument and/or reply argument NEB, Proponent, NRCan/EC/
AANDC/PCA/
TC/DFO
MPMO September 2015
41 File written reply argument Proponent   October 2015
42 Hearing record closes NEB   Immediately after finishing argument
43 Submit NEB’s Report to the Minister of NRCan NEB   By January 25, 2016
44 Issuance of the GiC Order setting out its decision on the project TB Cabinet Committee TBS/NRCan Within 3 months of submission of NEB’s Report to the Minister of NRCan
45 Regulatory action by the NEB in accordance with the GiC Order NEB   Within 7 days after the Order is made
46 Issue letter, on behalf of the Government of Canada, to Aboriginal groups MPMO NRCan Within one week of GiC Order
47 Publish the GiC Order in the Canada Gazette PWGSC NRCan Within 15 days of the GIC Order

Annex II

Gantt Chart: Target Timelines for the NEB ReviewFootnote 4

A Gantt chart that is a visual representation of the milestones and timelines in Annex I.

[Larger image - Gantt Chart: Target Timelines for the NEB Review]

Gantt Chart: Target Timelines for the Regulatory Phase5

A Gantt chart that is a visual representation of the regulatory milestones and service standards for the regulatory departments listed in section 2.0.

[Larger image - Gantt Chart: Target Timelines for the Regulatory Phase]

5 The Gantt chart is a baseline against which the timelines, identified in the Agreement expected to be taken by federal departments and agencies in carrying out their respective tasks for the Regulatory Phase, will be tracked. The timelines do not account for time taken by participants who are not signatories to this Agreement, such as the Proponent, provinces, Aboriginal groups, the public or other stakeholders.

Annex III

Aboriginal Engagement and Consultation Approach and Roles and Responsibilities

1.0 Context

The Government of Canada consults with Aboriginal people for legal reasons as well as for reasons of good governance, sound policy development and decision-making. Canada has statutory, contractual and common law obligations to consult Aboriginal groups. The Government of Canada will take a Whole of Government approach to Aboriginal consultation in the context of major projects to ensure that Aboriginal groups are sufficiently consulted, and where appropriate accommodated, when it contemplates actions that may adversely affect established or potential Aboriginal and treaty rights. These rights are recognized and affirmed in Section 35 of the Constitution Act, 1982.

This approach is mandated by both the Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects and the associated memorandum of understanding. The Directive states that Parties will work together towards a coordinated approach for Aboriginal consultation that is integrated with the EA, to the extent possible. The approach for federal consultation of Aboriginal groups for major projects was created in accordance with Aboriginal Consultation and Accommodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (AANDC; March 2011).

2.0 Identifying Aboriginal Groups

The NEB will work with federal authorities, regulatory departments, and AANDC to help the Crown to establish, upon receipt of a Project Description, a list of potentially impacted Aboriginal groups. The Crown will finalize the list.

Aboriginal groups consulted may change over time based on information received during the course of the review and information received from Aboriginal groups, as may the level of consultation activities undertaken by the Crown. The NEB will work closely with AANDC, MPMO and any other relevant federal department to ensure that the list of Aboriginal groups is kept up-to-date.

3.0 The Crown Consultation Process

The Government of Canada will to the extent possible rely on the NEB process, including the hearing, to discharge any duty to consult for the Project. Aboriginal groups that have Project-related concerns should convey these concerns to the NEB, either orally or in writing, through the NEB’s hearing process. Regulatory departments will likewise use the NEB process to respond to Project-specific concerns that may arise in relation to their mandates, as a mechanism to clarify and respond to issues and concerns raised. Supplementary Crown consultation activities will occur, should there be outstanding issues or concerns raised by Aboriginal groups that fall outside of the NEB process.

To help facilitate this process, the NEB will:

  • Undertake an engagement program with identified Aboriginal groups to explain: (1) the NEB process; (2) the Participant Funding Program; and (3) how Aboriginal groups can utilize and participate in this process to ensure that their views on potential effects and possible mitigation measures are heard and considered;
  • Conduct a public hearing process in respect of the Project application, including the following activities:
    • Require that the Proponent distributes the Hearing Order to potentially impacted Aboriginal groups;
    • Provide additional information, as necessary, to Aboriginal groups on how they can participate in the hearing process; and,
    • Consider cultural practices, location and timing when planning the oral portion of the hearing.
  • Assess the potential impacts of the Project on Aboriginal interests, including Aboriginal and treaty rights, as well as the appropriateness of potential mitigation measures; and,
  • Refer to the MPMO and relevant federal authorities, all issues raised by Aboriginal persons or groups in the context of the NEB’s Aboriginal engagement activities as well as during the public hearing proceeding.

The MPMO will:

  • Coordinate the Crown in a Whole of Government approach to Aboriginal consultation; 
  • In collaboration with regulatory authorities and other federal departments and agencies,  assess project impacts to potential or established Aboriginal and treaty rights;
  • Develop an Aboriginal consultation plan/framework in collaboration with regulatory authorities and other federal departments and agencies;
  • Provide oversight to ensure the overall consistency, accountability, and transparency of the Aboriginal Crown consultation effort, for the entire federal review;
  • Send correspondence to Aboriginal groups identified in the Crown list outlining the Crown’s approach to Aboriginal consultation in relation to the Project;
  • Coordinate the involvement and provide updates to regulatory departments and agencies and FAs regarding any federal Crown consultation activities with Aboriginal groups undertaken;
  • For Aboriginal consultation activities outside the NEB process, the MPMO will house and maintain the official Record of Crown consultation;
  • In collaboration with regulatory authorities and other federal departments and agencies, evaluate the sufficiency of the review process to satisfy the Crown’s consultation obligations, including the NEB process and any other consultations outside of that process, to ensure the overall consistency, accountability and transparency of the Crown consultation effort during the entire Project review;
  • Work with federal departments and agencies to determine whether further Crown action is required outside the NEB process to meet the Crown’s duty; and,
  • Serve as the focal point for providing instructions and otherwise interfacing with the Department of Justice in relation to the Project.

Regulatory Departments and Agencies will:

  • Contribute to the Whole of Government approach by participating, where possible, in the NEB hearing process and coordinated activities throughout the entire federal review (including before, during and after the review) in areas relevant/appropriate to their mandates and areas of statutory and policy responsibility;
  • Monitor and evaluate the adequacy of the NEB’s process and any other consultations outside of that process to satisfy Crown consultation obligations in respect of their legislative mandates, and assist other representatives of the Crown in evaluating the overall adequacy of the NEB process to discharge the duty to consult;
  • Fulfill obligations related to mandated responsibilities for issues raised in relation to the Project;
  • Report to both the NEB (through the NEB’s hearing process) and the MPMO, as appropriate, on any additional engagement and consultation activities undertaken, including any Aboriginal concerns raised;
  • When issues are raised by Aboriginal groups or persons outside the NEB process that are beyond the regulatory departments’ and agencies’ mandates, but are relevant to the NEB’s proceeding, refer these issues to the NEB. If these issues are outside the mandate of the NEB, refer them to the MPMO; and,
  • Support issues analysis work, where required.

FAs will:

  • Participate in any of the above activities upon request by the NEB, the MPMO and/or regulatory departments, or may upon their own prerogatives, as appropriate.

Department of Justice will:

  • Participate in the establishment of the Crown’s list of potentially impacted Aboriginal groups;
  • Provide legal services, information and advice to the MPMO, regulatory departments and FAs as appropriate and required throughout the federal review; and,
  • Assist in the evaluation of the scope, nature, and sufficiency of the Crown’s consultation efforts.

AANDC will:

  • Participate in the establishment of the Crown’s list of potentially impacted Aboriginal groups;
  • As appropriate and required throughout the federal review, provide information and advice to the MPMO, regulatory departments and agencies and FAs;
  • As required, provide advice and support to the evaluation of the scope, nature, and sufficiency of the Crown’s consultation efforts;
  • Follow-up with Aboriginal groups on project-related issues relevant to AANDC’s  mandate, if appropriate; and,
  • As required, provide information, advice and support to contribute to the ongoing assessment of the identified Aboriginal groups’ potential or established Aboriginal or Treaty rights. Where appropriate, this will also include advice on modern treaties. This will support the necessary adjustments to the consultation process, as required.

NRCan will:

  • Prepare a submission by the Minister to Cabinet for a decision and Order in Council for the project; and,
  • Provide analysis, input, and advice to support NEB’s review and government decision-making, as required.