Tribunal finds Trans Mountain stop work order was reasonable—mostly

Trans Mountain could have restarted pipeline expansion work in Burnaby by the end of July, according to a ruling from the Environmental Protection Tribunal of Canada.

The tribunal’s ruling, which was issued on July 27 but not posted on CanLII until this week, reviewed a decision by an Environment and Climate Change Canada (ECCC) officer on the ground in April of this year.

On March 23 and April 12, game officer Justus Mirembe attended the site after complaints about “an imminent disturbance and destruction” of Anna’s hummingbird nests were submitted to ECCC’s public reporting portal.

On the first day, Mirembe attended with Canada Wildlife Service biologist Chloe Boynton, who saw two Anna’s hummingbird nests, as well as other migratory species.

During the second visit, in April, Mirembe and another officer attended with a member of the public, meeting with Trans Mountain employees on the site. That included a Trans Mountain wildlife biologist, Tom Heakes.

That day, they found five of the hummingbird nests in trees with five-metre buffer zones around them.

But a sixth nest was found on the ground, with a broken egg, next to a recently felled tree, which a Trans Mountain subcontractor confirmed had been felled three hours earlier.

Four days later, after consulting with Boynton, Mirembe issued a written compliance order. The order included three requirements: that workers not disturb any more Anna’s hummingbird nests, that work stop in the area altogether, and that signage announcing a ban on disruptive activities in the area be erected.

Trans Mountain alleges tainted motivations

Trans Mountain sought a review of the order, arguing that, while a nest was destroyed on its worksite, there was no evidence that there would be any further damage.

According to the ruling, Trans Mountain argued that Mirembe and the other officer didn’t have the expertise to say what, exactly, caused the disturbance of the nest.

“Although Trans Mountain suggested there was no proof that the tree was felled by Trans Mountain employees, the tribunal finds officer Mirembe’s conclusion was reasonable based on what he witnessed and heard,” reads the ruling

The Crown corporation further levelled accusations that “the public complaints or the fact that he was accompanied by a member of the public during the April 12, 2021 inspection tainted [Mirembe’s] motivations.”

“Although Trans Mountain’s self-described ‘first priority’ is to avoid construction in the nesting season, Mr. Preston noted ‘there is little indication of specific efforts to avoid the nesting period.’”

Photo: Dustin Godfrey / Burnaby Beacon

A look at some of the flora along the path to a tree-sit set up near where an Anna's hummingbird nest was found broken, halting work on the Trans Mountain pipeline expansion in the area.

Photo: Dustin Godfrey / Burnaby Beacon

But the tribunal found that Mirembe “demonstrated independent and professional exercise of his discretion.”

“Trans Mountain’s suggestion that game officer Mirembe was influenced as early as February 2021 by the emotional tone of the public complaint(s) or internal discussion between other government employees in an email conversation (that did not include him) are bald allegations based on conjecture,” the tribunal wrote, describing ECCC’s submissions.

The email conversation referenced in the decision is not expanded on.

“The Tribunal finds that there is no evidence of this expressed or implied allegation,” the tribunal added. “The game officer made it clear in cross-examination that he was not influenced by any factor and operated independently in the exercise of his discretion.”

Ultimately, the tribunal found that Mirembe had reasonable grounds to believe Trans Mountain contravened the Migratory Birds Convention Act by destroying the nest and egg.

Violations remained likely

And while the tribunal found no reasonable grounds for believing that contravention continued, the three-person panel determined ECCC was correct in believing the contravention was likely to occur.

“Trans Mountain submits that the fact that game officer Mirembe thought that there would be future mortalities does not take into account the project’s mitigation measures,” the ruling notes.

“As such, there is no ‘objective basis’ for the belief that Trans Mountain was likely to contravene the MBCA and regulations by way of the disturbance or destruction of the two Anna’s hummingbird nests.”

ECCC countered by referring to a conversation Mirembe had with Heakes, Trans Mountain’s wildlife biologist, about whether the company was scanning trees from top to bottom.

“Game officer Mirembe was told by the wildlife biologist that ‘no’ they were not and that they were ‘doing the best we can,’” the tribunal wrote.

The panel also noted Mirembe’s statement in cross-examination that he “believed with reasonable grounds that there was going to be more birds and nests and eggs destroyed if I did not do anything.”

The tribunal found that there “is an objective basis for the belief that Trans Mountain was likely to contravene” the law.

Trans Mountain argued that while there was potential for disturbance or destruction of a nest, it didn’t meet the likelihood threshold set out by the law.

However, the tribunal pointed to Boynton’s expert opinion that activity of migratory birds would “only increase in the upcoming weeks and months, with the arrival of new migrants.”

The decision also noted that the most effective way to avoid contravening the laws is “to avoid tree clearing during the nesting window.”

“Although Trans Mountain’s self-described ‘first priority’ is to avoid construction in the nesting season, Mr. Preston noted ‘there is little indication of specific efforts to avoid the nesting period,’” the tribunal wrote, referring to Stantec biologist Michael Preston, who was hired by Trans Mountain to review its mitigation measures.

No further ‘high likelihood’ of violations

However, the tribunal further found that there was no further need for the last two requirements of the order. That included an order to stop felling trees and a requirement to have signage up stating that there was no activity permitted on site.

The decision references ECCC biologist Kevin Fort, who noted the high point of Anna’s hummingbird breeding occurred from March to June, “but also that nesting can continue through July and into early August.”

While ECCC argued the stop work order should continue, the tribunal found that did not take into account the diminished activity of the hummingbirds in that area, as well as additional mitigation measures proposed since the stop work order was issued.

“The tribunal therefore finds that at the time this decision is issued the risk, while it remains, to hummingbirds and other migratory bird species in the area, falls short of serious or a ‘high likelihood’ as ECCC defines the term,” the decision reads.

“Instead, we find the risk is lower, mitigated by the passage of time in combination with the mitigation measures Trans Mountain is required to implement and the additional measures it has undertaken to implement.”

As such, Trans Mountain was permitted to return to tree felling work in the area as of the date of the decision, July 27.

Trans Mountain did not immediately respond to a request for comment by Burnaby Beacon as to why it did not begin work until September.

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