The Canadian Energy Regulator (CER) has determined that Trans Mountain’s “robust” efforts at reconciliation with indigenous groups was a big factor in allowing the company to deviate the TMX pipeline 1.3 kilometres through sacred indigenous ground.Although the CER approved the route change on Sept. 25, it only released its ‘reasons for decision’ on Friday.In a 47-page ruling, the CER said Trans Mountain engaged with the Stk'emlúpsemc te Secwépemc Nation (SSN) in a “reasonable manner” even though it was eventually unable to come to terms on a mutually agreeable result..“The process of consultation based on a relationship of mutual respect advances reconciliation regardless of the outcome.“Canadian Energy Regulator.In that regard, the Commission found that continuing micro-tunnelling would most likely fail and could delay the completion of the TMEP by at least ten months and in fact cause more surface disruption — not less. The ensuing delay could have resulted in an estimated $2 billion of lost revenue for Trans Mountain and cause negative impacts on shippers and other parties.“In the Commission’s view, the engagement efforts undertaken by both parties are reflective of a consultative process rooted in Reconciliation. They were premised on a constructive relationship, based on mutual respect, where the concerns of SSN were taken on board, considered, and only rejected after informed reflection and for good reason,” it wrote.The Commission also considered its duties and obligations in light of the United Nations Declaration on the Rights of Indigenous Peoples Act and the CER’s commitment to Reconciliation, and said it “finds that any requirements thereunder were adequately addressed” under both international conventions and Canadian legal precedent.“The process of consultation based on a relationship of mutual respect advances reconciliation regardless of the outcome. Put another way, reconciliation does not dictate any particular substantive outcome.”.The Commission noted the burden of proof rests on the applicant, in this case, Trans Mountain, to persuade it that a deviation is required.Although it considered SSN’s “traditional oral” based evidence, the CER said it found Trans Mountain’s technical arguments “more compelling” and “substantially more detailed and… more definitive.”It also noted the deviation is well within the original route margins previously agreed upon and approved as far back as 2019. The Commission itself is responsible for adjudicative decisions and recommendations, operating as a quasi-judicial body that is arm's length from other parts of the CER governance structure and the federal government.Assuming the decision isn’t appealed, TMX will begin filling the line with oil by the end of this year and begin pumping 880,000 barrels per day in the first quarter of 2025.
