CER won’t back down on Trans Mountain tree removal decision

The City of Burnaby has lost its bid for a second hearing on a federal government decision to give Trans Mountain greater tree-removal power.

In October 2021, the Canada Energy Regulator approved an application by Trans Mountain to bypass the city’s tree bylaw to remove 86 trees.

But the ruling also gave Trans Mountain the power to remove “any additional tree clearing within Burnaby that Trans Mountain may determine to be reasonably necessary for the construction or operation of the project.”

Prior to that decision, Trans Mountain had to apply for tree cutting permits with the city and, failing that, go to the CER for permission to circumvent the bylaw.

And in early November 2021, after Burnaby Beacon reported on the CER’s October decision, the city filed an application asking for the commission to reconsider.

Specifically, the city sought an order to remove the reference to future tree clearing, saying it “did not have notice that the commission could grant relief relating to future tree clearing or an opportunity to respond to evidence related to future tree clearing.”

The city also argued that Trans Mountain’s motion that spurred the decision did not use the term “future tree clearing,” and that references to “additional tree clearing” was not the focus of the motion.

“The city chose not to participate in the proceeding on the understanding that the motion related to the exemption of an access permit and the cutting of 86 specific trees identified in a revised tree management plan,” reads a decision earlier this month on the matter.

The order, as is, goes beyond the commissioner’s jurisdiction, the city argued, adding that there was “no evidence available regarding future tree clearing to which the city could respond.”

Between Nov 26 and Dec 8 last year, the city, Trans Mountain, and the Province of Alberta filed written arguments on the matter.

Alberta and Trans Mountain both countered that the federal Crown corporation’s motion clearly contained references to “any additional tree clearing within Burnaby that Trans Mountain may determine to be reasonably necessary for the construction or operation of the project.”

Alberta added that the city had not identified any new or changing facts in the case.

Trans Mountain further argued it has evidence of “the city’s unwillingness to issue tree-cutting permits related to the project.”

And on Feb 2 this year, the CER came to a decision.

“After considering all of the submissions received, the commission finds that the city has not raised a doubt as to the correctness of the decision and order,” reads the decision.

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