City of Burnaby Demands Trans Mountain Stop Construction

17 October 2018, Coast Salish territory (Burnaby, BC) Trans Mountain Corporation must stop construction at the Burnaby Mountain tank farm, says the City of Burnaby in a submission to the National Energy Board.

The Trans Mountain tank farm construction site should have been shut down with the rest of the construction activity on the pipeline and tanker project on August 30, says Burnaby, after the Federal Court of Appeal quashed the National Energy Board approval of the project.

Burnaby filed the motion with the National Energy Board October 2, asking the National Energy Board to withdraw permits for tank farm construction, as they were specifically issued after the overall project was approved. Now that the Certificate has been quashed by the courts, permits that rely on that Certificate must also be quashed.

However, the Crown Corporation is continuing construction to triple the size of the tank farm for the pipeline and tanker project.

Now that the Federal Court of Appeal has quashed the approval to build the pipeline and tanker project the fence must come down, argues Burnaby counsel Gregory McDade in a recent filing. [Full text below]

"Now that construction authorization has been withdrawn by the court, we ask that you immediately notify Trans Mountain that the fence must be removed as an obstacle to public access."

In a related motion last month, the City is also petitioning the Vancouver Fraser Port Authority to withdraw Trans Mountain's permit to operate the "Marine Construction Safety Boom" around the perimeter of the (former Kinder Morgan and now) government of Canada-owned tanker berth construction site. The permit to triple the number of berths at the terminal was dependent on the overall approval of the project, Burnaby argues, and now that the general approval has been quashed, so too should be the fence permit.

Citizen watchdogs at the tank farm report have documented increased construction activity at the Burnaby tank farm in recent weeks. Burnaby's challenge to the Port and the NEB is the first real test of the new Trans Mountain Crown Corporation's intentions of obeying the stop work order set down August 30 by the Federal Court of Appeal, in a ruling the federal government decided this month not to appeal to the Supreme Court of Canada.

Link to the PDF

RATCLIFF & COMPANY LLP
October 2, 2018
File No. 13-0010-000
BY ELECTRONIC FILING

National Energy Board
517 10th Ave SW
Calgary, AB T2R 0A8

Attention: Sheri Young, Secretary of the Board

Dear Ms. Young:

Re: Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153 (“Decision")
Trans Mountain Expansion Project (the “Project”)
Burnaby Terminal Orders XO-T260-010-2016, T260-003-2017 and MO-021-2017
File OF-Fac-Oil-T260-2017-01 01
File OF-Fac-Oil-T260-2017-02 01
File OF-Fac-T260-2013-03 02

We are legal counsel for the City of Burnaby (“Burnaby”).

Please find enclosed a motion on behalf of Burnaby to review or rescind Burnaby Terminal Orders XO-T260-010-2016, T260-003-2017 and MO-021-2017 in light of the Decision on the Project.

Yours truly,

RATCLIFF AND COMPANY LLP

GREGORY J. MCDADE, Q.C.
Barrister and Solicitor
*Gregory J. McDade Law Corporation

cc. Trans Mountain – [email protected]

File OF-Fac-Oil-T260-2017-01 01
File OF-Fac-Oil-T260-2017-02 01
File OF-Fac-T260-2013-03 02

IN THE MATTER OF the National Energy Board Act
and the regulations made thereunder; and

IN THE MATTER OF ORDER XO-T260-010-2016,
ORDER XO-T260-003-2017 and ORDER MO-021-2017
of the National Energy Board.

NOTICE OF MOTION

Name of person bringing motion: City of Burnaby

Decision or order requested: 1. An order pursuant to s. 21 of the National
Energy Board Act rescinding Orders XO-
T260-010-2016, XO-T260-003-2017 and
MO-021-2017;

2. An interim stay or hold on construction
under those Orders until this Motion has
been concluded; and

3. Such further and other relief as the
National Energy Board deems just.

PART 1 - STATEMENT OF FACTS

A. INTRODUCTION

1. The City of Burnaby (“Burnaby”) brings this motion to request that the National Energy Board (“NEB” of the “Board”) review, vary or rescind Orders XO-T260-010-2016, XO-T260003-2017 and MO-021-2017 for the Burnaby Terminal pursuant to s. 21 of the National Energy Board Act in light of the decision of the Federal Court of Appeal quashing Order in Council P.C. 2016-1069 for the Trans Mountain Expansion Project (TMEP) and declaring the Certificate of Public Convenience and Necessity No. OC-064 (the “CPCN”) a nullity (the “Decision”).1

B. BURNABY TERMINAL ORDERS

2. On January 25, 2017, Trans Mountain Pipeline ULC (“Trans Mountain”) submitted an application for the Burnaby Terminal facility piping relocations under s. 58 of the National Energy Board Act (the “Facility Piping Relocations Application”). Trans Mountain's rationale for the application was set out as follows:

By way of this Application, Trans Mountain seeks authorization to relocate facility piping and related ancillary infrastructure at Burnaby Terminal as described herein , but generally described as the relocated portions of certain delivery lines, tank lines, fire suppression system, and other utilities, to allow for the construction of tanks and associated infrastructure as a part of the Trans Mountain Expansion Project (“TMEP”) and as authorized by Order XO-T260-010-2016. Order XO-T260-010-2016 was issued on 6 June 2016, and pursuant to subsection 19(1) of the NEB Act, takes effect upon the issuance of the certificates approving TMEP. Following Governor in Council approval of TMEP, the Board issued Certificates OC-064, AO-003-OC-2 and AO-002OC-49 on 1 December 2016, which caused Order XO-T260-010-2016 to take effect. 2 (emphasis added)

3. The Facility Piping Relocations Application goes on to state that:

Trans Mountain has identified several segments of delivery lines, tank lines and related ancillary infrastructure that require relocation within the fence line of Burnaby Terminal, which would otherwise interfere with the construction of TMEP. In total Trans Mountain proposes to relocate and install:
- Suncor Delivery Line: 832 m;
- Tank No. 72 Line: 295 m;
- Tank No. 85 Line: 93 m;

1. Tsleil-Waututh Nation v. Attorney General of Canada, 2018 FCA 153, para. 768
2 Application Pursuant to Section 58 of the NEB Act - Burnaby Terminal Facility Piping Relocations (A81464)

- Tank No. 86 Line: 401 m; and
- relocated portions of the fire suppression system and utilities, as required.3 (emphasis added)

4. In the Facility Piping Relocations Application, Trans Mountain notes that it will be filing an application concurrent with this application seeking the following:

Trans Mountain seeks approval to decommission certain facility piping and associated ancillary infrastructure which would otherwise interfere with construction activities associated with TMEP, some of which is being replaced by facility piping in this Application. In that application, Trans Mountain requests approval pursuant to section 45.1 of the OPR to decommission:

- Suncor Delivery Line: 567 m;
- Shell Delivery Line: 370 m;
- Tank No. 72 Line: 237 m;
- Tank No. 85 Line: 81 m;
- Tank No. 86 Line: 201 m; and
- portions of the fire suppression system and utilities, as required.4 (emphasis added)

5. On January 25, 2017, Trans Mountain filed the application described above to decommission selected portions of facility piping and related ancillary infrastructure (the “Decommissioning Application”). The rationale for the application is set out as follows:

On 6 June 2016, the Board issued Order XO-T260-010-2016, and pursuant to subsection 19(1) of the National Energy Board Act (“NEB Act”), this Order takes effect only upon issuance of the certificates approving the Trans Mountain Expansion Project (“TMEP”). The Governor in Council approved TMEP, and directed the Board to issue the Certificates to that effect. Accordingly, the Board issued Certificates AO-003-OC-2, AO-002-OC-49 and OC-064 on 1 December 2016, which caused Order XO-T260-010-2016 to take effect. Order XO-T260-0102016 permits the construction of 14 tanks and associated infrastructure at Burnaby Terminal, as related to TMEP.

Trans Mountain has identified select facility piping that would otherwise be in the way of the construction of TMEP tanks and associated infrastructure, and require removal or relocation. 5 (emphasis added)

6. On April 20, 2017, the Board issued Order XO-T260-003-2017 pursuant to section 58 of the National Energy Board Act approving of the work set out in the Facility Piping Relocations Application. 6

3. Application Pursuant to Section 58 of the NEB Act – Burnaby Terminal Facility Piping Relocations (A81464)
4. Application Pursuant to Section 58 of the NEB Act – Burnaby Terminal Facility Piping Relocations (A81464)
5. Application to Decommission Facility Piping at Burnaby Terminal (A81465-2)
6. NEB Letter - Trans Mountain - Burnaby Terminal XO-T260-003-2017 (A82717); Order XO-T260-003-2017 (A82717)

7. On April 20, 2017, the Board issued Order MO-021-2017 pursuant to section 45.1 of the National Energy Board Onshore Pipeline Regulations approving the work set out in the Decommissioning Application. 7

8. Order XO-T260-010-2016 Terminal mentioned in both the rationale for the Facility Piping Relocations Application and the Decommissioning Application permitted the construction of 14 tanks and associated infrastructure at Burnaby Terminal for the TMEP. As set out in the recitals for the Order XO-T260-010-2016, the Order was based upon the TMEP hearing OH001-2014 where according to the Order the “Panel had regard to all considerations that were directly related to the Project and were relevant, including environmental matters, pursuant to Part III of the NEB Act, and conducted an environmental assessment of the Project pursuant to the CEA Act” and the NEB report for the TMEP. 8

9. Order XO-T260-010-2016 only came into effect pursuant to subsection 19(1) of the National Energy Board Act on the issuance of the Certificates AO-003-OC-2, AO-002-OC-49 and OC-064 for the TMEP. 9

10. On 1 March 2017, Trans Mountain applied pursuant to section 21 of the National Energy Board Act to vary Order XO-T260-010-2016 to accommodate design changes to the Burnaby Terminal tank configuration. The Board granted that variance on June 22, 2018. 10

C. FEDERAL COURT OF APPEAL DECISION

11. On August 30, 2018, the Federal Court of Appeal released the Decision. The Decision found that the environmental assessment undertaken by the NEB was not in compliance with the NEB’s statutory obligations to scope and assess the Project as the “Board unjustifiably excluded Project-related shipping from the Project's definition".11 This flaw undermined the central finding of the NEB report that the Project was not likely to cause significant adverse

7 NEB Letter Trans Mountain - Burnaby Terminal MO-021-2017 (A5K5X7); ORDER MO-021-2017 (A82725)
8 Order XO-T260-010-2016 (A5C4Z6)
9. Order XO-T260-010-2016 (A5C476)
10 National Energy Board - Letter and Order AO-001-XO-T260-010-2016 to Trans Mountain Pipeline ULC - Burnaby Terminal Variance (A92673); NEB - Order - Trans Mountain – Burnaby Terminal – AO-001-XO-T260010-2016 (A6F5F8)
11 Tsleil-Waututh Nation v. Attorney General of Canada, 2018 FCA 153, para. 764

environmental effects and “led to successive, unacceptable deficiencies in the Board's report and recommendations.":12

12. The FCA concluded that “[w]ith such a flawed report before it, the Governor in Council could not legally make the kind of assessment of the Project's environmental effects and the public interest that the legislation requires." 13

13. The FCA ordered that Order in Council P.C. 2016-1069 should be quashed, rendering the certificate of public convenience and necessity approving the construction and operation of the Project a nullity.14 The Court ordered that “the Governor in Council must refer the Board's recommendations and its terms and conditions back to the Board, or its successor, for reconsideration."15

D. TRANS MOUNTAIN'S INTENTION TO CONTINUE WORK AT THE BURNABY TERMINAL

14. On September 10, 2018, Trans Mountain wrote to the Board stating that “Orders XOT260-003-2017 and MO-021-2017 are not affected by the Decision” and that Trans Mountain intended to proceed with the work. The justification that Trans Mountain gave for being able to proceed with the work approved by these Orders is that the modifications will allow it to optimize the existing site” and the “modifications are required to accommodate future operations of the TMPL regardless of whether the TMEP ultimately proceeds and are entirely within the existing site." 16

15. The justification that Trans Mountain provides for being able to continue with the work under Orders XO-T260-003-2017 and MO-021-2017 is not consistent with the rationale for the Orders as set out in the respective applications.

12 Tsleil-Waututh Nation v. Attorney General of Canada, 2018 FCA 153, para. 5
13 Tsleil-Waututh Nation v. Attorney General of Canada, 2018 FCA 153, para. 766
14 Tsleil-Waututh Nation v. Attorney General of Canada, 2018 FCA 153, para. 768
15 Tsleil-Waututh Nation v. Attorney General of Canada, 2018 FCA 153, para. 769
16 Letter from Trans Mountain Corporation to Sheri Young re: Impact of Decision on NEB Orders (A6H418)

PART 2 - GROUNDS FOR THE REQUEST

A. THE FOUNDATION FOR THE BURNABY TERMINAL ORDERS HAS DISAPPEARED

16. Pursuant to s. 21(1) of the National Energy Board Act the Board has the power to review, vary or rescind any decision or order made by it or rehear any application before deciding it.

17. The quashing of the CPCN and the decision of the Federal Court of Appeal is a significant new matter that requires reconsideration of related Orders.

18. Order XO-T260-010-2016 permitting the construction of 14 tanks and associated infrastructure at Burnaby Terminal for the TMEP is based upon the TMEP hearing OH-001-2014 and the NEB report for the TMEP. Order XO-T260-010-2016 only came into effect upon issuance of the Certificates for the TMEP, including the CPCN.

19. The FCA has now found that the NEB report to be “so deficient that it did not qualify as a report within the meaning of the legislation”, quashed Order in Council P.C. 2016-1069 and declared the CPCN a nullity. 17

20. A nullity is something that has no legal effect. “Nullity” is defined in Black's Law Dictionary, 9th ed. (St. Paul, Mn: West, 2004) at 1173 as: “1. Something that is legally void.”

21. “Void” is defined in Black's Law Dictionary, 9th ed. (St. Paul, Mn: West, 2004) at 1709 as: “1. Of no legal effect; null.”

22. In MacFoy v. United Africa Co. Ltd. [1961] 3 All E.R. 1169 (P.C.) at 1172, Lord Denning discussed the concepts of nullity and being void as follows:

If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.

23. A mandatory pre-condition for Order XO-T260-010-2016 coming into effect was the issuance of the CPCN for the TMEP. Now that the CPCN has been declared a nullity, the

17. Tsleil-Waututh Nation v. Attorney General of Canada, 2018 FCA 153, para. 470.

foundation for Order XO-T260-010-2016 has disappeared and the Order should be rescinded until such time as the reconsideration of the TMEP is complete. As noted above, you “cannot put something on nothing”.

24. Further, as acknowledged by Trans Mountain in both the Facility Piping Relocations Application and the Decommissioning Application, the work under Orders XO-T260-003-2017 and MO-021-2017 is directly related to the TMEP and the coming into effect of Order XO-T260-010-2016. The Facility Piping Relocations Application says the rationale for the work is to allow for the construction of tanks and associated infrastructure as a part of the Trans Mountain Expansion Project (“TMEP”) and as authorized by Order XO-T260-010-2016" and the Decommissioning Application states that “Trans Mountain has identified select facility piping
that would otherwise be in the way of the construction of TMEP tanks and associated infrastructure, and require removal or relocation.”

25. There is no evidence in either the Facility Piping Relocations Application or the Decommissioning Application to support Trans Mountain's assertions that this work would be required regardless of the TMEP or that Trans Mountain applied for this work to “optimize the existing site”. Both Applications directly cite accommodating the TMEP and the Burnaby Terminal expansion as authorized by Order XO-T260-010-2016 as the reason for the relocation and decommissioning work, and the Board issued the Orders on the basis of Trans Mountain's application material.

26. Yet, as set out in the letter of September 10, 2018, Trans Mountain is proposing to undertake construction work under Orders XO-T260-003-2017 and MO-021-2017 as the reconsideration of the TMEP is underway. This would mean that Burnaby would be subject to the disruption and effects of this work prior to Trans Mountain having approval for the TMEP.

27. Given that the legal foundation and rationale for Orders XO-T260-010-2016, XO-T260003-2017 and MO-021-2017 has disappeared as a result of the Decision, the Board should rescind these orders and not allow further work at the Burnaby Terminal to proceed until such time as the reconsideration for the TMEP is complete and the Governor in Council has had the opportunity to consider whether to approve the TMEP and direct the Board to issue a new
Certificate of Public Convenience and Necessity for the TMEP.

28. The issuance of a new CPCN cannot be assumed to be inevitable. It is the decision of the Governor in Council.

29. The proposed work under the Orders is within the City of Burnaby, and without a CPCN, would be subject to provincial/municipal jurisdiction aimed at protecting the public interest of the citizens of Burnaby. Work related to the TMEP when the approval for the TMEP has been quashed and the CPCN declared a nullity should not be allowed to continue to affect the public
in Burnaby until such time as there is a valid approval for the TMEP.

B. STAY PENDING DECISION

30. Trans Mountain, by letter of September 21, 2018, requested that other Orders and Applications "be held in abeyance pending the approval of the Project by the GIC and the issuance of a valid CPCN” 18 It is inconsistent to make an exception for the Orders in this motion. Trans Mountain's arguments are contradictory in that sense.

31. In any event, until this motion has been heard and decided, Burnaby requests that the Board issue an interim stay on any construction activities under Orders XO-T260-010-2016, XOT260-003-2017 and MO-021-2017.

PART 3 - ORDERS SOUGHT

32. As such, Burnaby requests that the Board grant the following relief:

(a) An order pursuant to s. 21 of the National Energy Board Act rescinding Orders
XO-T260-010-2016, XO-T260-003-2017 and MO-021-2017;

(b) An interim stay or hold on construction under those Orders until this Motion has
been concluded; and

(c) Such further and other relief as the National Energy Board deems just.

Dated: October 2, 2018

Gregory J. McDade Q.C.
Counsel for the City of Burnaby

18 Trans Mountain letter to NEB re: Abeyance request (A94120-1)