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CER clears future Burnaby tree removal permit hurdles for TMX

Trans Mountain has been granted the ability to remove trees within its pipeline route without applying for a permit from the city, or for an exemption from the federal government.

Over the course of the last year, the Crown corporation has argued the City of Burnaby has been uncooperative in its tree removal permit applications. That has led Trans Mountain to request exemptions by the Canada Energy Regulator from Burnaby’s tree bylaw.

Early this year, the CER approved the removal of up to 1,308 “protected” trees, meaning trees with diameters of 20.3cm (eight inches) or greater. (That figure appears to have since been revised, with the most recent CER decision referencing 1,189 trees approved for clearing.)

The Brunette River area, where the tree clearing work has taken place, has been a frontline between climate activists and authorities, including police and Trans Mountain.

In August, Trans Mountain applied for the CER to grant an exemption from the city’s tree bylaw to remove another 86 trees.

But the Crown corporation went even further, asking for an exemption not only for those 86 trees but for “any additional tree clearing within Burnaby that Trans Mountain may determine to be reasonably necessary for the construction or operation of the project.”

Trans Mountain further sought approval for building a new access off of North Road to the south of the railway tracks that run through the Brunette River area.

The City of Burnaby did not submit any arguments in this particular case, after it lost the larger tree removal issue in February this year.

Tree removals to go ahead

A majority of the CER’s panel found that Trans Mountain should not need to apply for tree removal permits with the city for the 86 trees, nor for any future tree clearing.

Lead commissioner Damien Côté dissented, calling the motion “premature due to speculative grounds with respect to tree clearing.”

In its decision, the majority noted the historical relationship between the city and Trans Mountain. The pipeline corporation argued that the city was uncooperative and took too long to approve the necessary permits.

The company argued that has been the case since as far back as 2017.

With the city offering no argument in the case, the majority decision noted that it “must resist the temptation to fill such a void and create a case for a non-existent opposing side.”

The majority also said the conflict between the city and Trans mountain is “sufficiently serious” to give the panel reason to override the city’s bylaw when it comes to tree removals.

Particularly, the panel cited the fact that, according to Trans Mountain, the city has never approved a tree cutting permit for Trans Mountain.

Côté, however, argued that the power of federal law to override provincial and municipal rules “must be narrowly construed.” As such, he argued the panel could not have decided on the future tree clearings, as there is no evidence the city would have denied or frustrated those applications.

However, the majority countered that the longevity of the conflict between Trans Mountain and the city constituted evidence for its future inclinations.

‘Infuriated’ by the decision

Elan Gibson, a member of BROKE (Burnaby Residents Opposing Kinder Morgan Expansion), said she was “infuriated” by the decision.

Anti-Trans Mountain activists say the pipeline cannot reasonably fit within a plan to reduce Canada’s carbon emissions by 45% by 2030. They have pointed to the example of this past summer, which saw deadly heat waves and massive wildfires, as reasons for cancelling the pipeline.

Advocates for the pipeline say any money generated from the pipeline will be put toward climate action and say the country still practically relies on oil for many products.

Local opponents to the pipeline, meanwhile, say the project, deemed to be in the national best interest, puts the local community at risk.

“I do not think it’s in the best interest of Burnaby, period, having such a hazardous waste, hazardous product coming through a suburban, heavily [densely populated] area,” Gibson said.

What’s more, she said, the removal of trees for the pipeline work even further against efforts to mitigate the climate crisis.

“Trees are … a carbon sink, and Burnaby has so many beautiful green spaces where trees can do their work and absorb the carbon that we have from all the traffic that flows through here,” she said.

Gibson had filed a letter with the CER in January hoping to intervene, on behalf of BROKE, in the process for the original tree removal application.

She was not allowed to intervene, as it was only open to the city and provincial attorneys general.

In her letter, she argued that the Brunette River and its tributaries are spawning areas for chum salmon—among other species.

“Removing the riparian protection of the trees removes the microbes and shade necessary for the hatching fingerlings to survive in their early years before they begin their swim to the ocean,” Gibson wrote.

Can Trans Mountain regulate itself?

In an interview, she further argued that the matter of the Anna’s hummingbird was evidence that Trans Mountain should not regulate itself.

Earlier this year, Trans Mountain received a stop-work order from Environment and Climate Change Canada due to a broken Anna’s hummingbird nest.

“They were not following the mandates that they have about protecting endangered species, about the riparian zones,” Gibson said.

In an emailed statement to Burnaby Beacon, Trans Mountain said it will conduct the tree removal work in compliance with “necessary approvals, permits and project environmental protection plans.”

The Crown corporation added the work will be monitored by “experienced environmental inspectors.”

“In addition, qualified forestry professionals will be on-site during key activities to provide oversight of tree and forest health protection measures to minimize potential impacts to adjacent forested ecosystems and landscapes,” Trans Mountain said.

The company added that it typically has a right-of-way passage of 18 metres.

“However, recognizing the value placed on green space in urban communities, the permanent right-of-way for the new pipeline will be reduced to 10 metres,” Trans Mountain said.

It added the tree removals will be contained to that 10-metre right-of-way area and its workspaces of up to 30 metres across.

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