Sort of listening to oral arguments on Trans Mountain's CER application to bypass @CityofBurnaby bylaws re: tree removal permits. I'm late on this (started 9 a.m. ET), and they just went into break. Sounds like TM just finished their arguments? https://cer.isilive.net/TMPULC/ 

Panel said they will have questions for TM's lawyer, but they're on a 20 min break.

Argument I basically heard for the last 10 mins was: TM has been trying to work with city to obtain permits, but the city has stalled and said the application is unlikely to be approved as is.

Here's my summary from Burnaby's written response earlier this month: https://www.burnabynow.com/local-news/burnaby-claims-tmx-is-bulldozing-tree-removal-permit-process-3276036

Asked what TM can commit to in compliance, TM's lawyer says they plan to agree to paying money to the city in lieu of tree replacements, putting up fencing and giving notice to the city and residents in some cases.

City of Burnaby now arguing, says it's not going to take up much time. Says the issue doesn't even get to the constitutional question at hand – whether the CER should allow TM to circumvent its bylaws – as it's just a question of fact, based on a few days in December.

CoB lawyer notes TM submitted its first application on Dec. 7. It received a tree management plan several months before, but it was not part of an application since it came well before any application was submitted. D7 letter said it requires a response by Dec. 11 – just 4 days.

Says TM knows four days is "grossly insufficient" for even one tree, let alone more than 1,300 trees. Says TM didn't respond back to try to resolve it. Instead just filed with CER the next business day.

"That kind of a gun-to-your-head deadline is simply not reasonable," lawyer says.

In July, TM made application to COB's engineering dept, which was submitted by TM in its CER filings. App was not for tree removal but to access city land for convenience, not essential to their work. CoB agreed to this, which lawyer says was completely voluntary on city's part.

Uh oh. My coffee cup is empty.

A letter from the parks dept, submitted by TM, in which an official says the city is opposed to tree removal on city land, but lawyer says that was not about the tree removal – about the city voluntarily allowing access to its land and not wanting trees removed in the process.

Lawyer says city has been handling TM's filings with its regulatory process in good faith. In written submissions, city says it did not in its written filings.

The city is hinging a fair bit of its argument on the notion that the summer 2020 filing of a tree management plan by TM was not considered by the city at the time, a) believing it was a draft and b) because it was not done as part of an application, but months before the app.

TM had written later on asking if the city had any comments on it. City did not at the time because it was submitted uninvited and not part of the regulatory process. City claims it's unreasonable to expect the city to consider that part of the regulatory process.

Asks the commission how it would receive documents submitted to it before any application was made to it. (The presumption being it wouldn't receive those documents.)

City lawyer says it has approved most of TM's applications. This, he says, does not indicate any bad faith on the city's part. There's no Q, the city is opposed to the pipeline. But: "Burnaby staff is a professional group that take their regulatory responsibilities seriously."

Staff are receiving applications as they come in and evaluating them based on their merit.

"It is offensive to the professionalism of Burnaby's staff to suggest to the contrary."

CoB: It's already been ruled by NEB that the city's regulatory process is not in question. While the city can't cause unreasonable delays in the process, as decided by NEB, TM still needs to adhere to the city's bylaws and can't rely on the board as a quick remedy to those regs.

CoB also refutes the notion that Burnaby's actions have slowed the pipeline down (and therefore costed TM millions of dollars, as claimed). It's been other forces that have caused the delays on the pipeline. And if that were the case, then why didn't TM submit its app earlier?

"Somebody at Trans Mountain dropped the ball," CoB says, and it's unfair to turn around and put that blame on the city.

And that's the end of the city's submissions, adding the city is not seeking costs from TM.

We’re on another 20 minute break, and just appreciating the prog rock hold music here

Qs now for the city. One panelist asks whether the city can point to anything in the tree bylaw that gives the city the authority to not consider an application. City says there isn't, and if TM had just continued to work with the city instead of going to CER, they would have.

That's all for Qs for Burnaby's lawyer. They're now taking another 10-min break, and TM's lawyer expects to give a 15-min response to the city's arguments.

TM lawyer is responding now. Says discussions occurred in 2017 around the methodology for a tree management plan, and the city did provide input into those plans and participate in a tree survey.

Argument about the tree management plan not being submitted properly. Correspondence that came back from Burnaby in Aug. 2020: City claims it wasn't submitted properly & therefore not part of process. But included in the correspondence is officials like superintendent, foreman.

TM lawyer says if someone were to submit something to CER prior to an application being submitted, the panel would not have just let it sit "on the record" without doing anything about it.

City claims it's all about a few days in December, and if that taken alone, it looks bad for TM. But there's a *ahem* Mountain of context that the city is ignoring. TM says city has been working with TM for years on this.

City "has not shown any willingness through the years" to approve permits for this. TM says it can't have these kinds of disputes every time three or four trees (or 1,300?) need to be taken down. It has timelines.

Evidence shows Burnaby's reluctance. TM filed application in Dec. because it needed clarity that it was going to be working with the city on this, assuming it was already in the process of getting tree removals.

Slowing down tree clearing in Burnaby is the main issue slowing down work for the project. And there's no evidence to suggest it will be a short time for the city to process the request, and city has indicated it would not approve the app as is.

TM has indicated it needs to get the city's approvals and soon, but the city hasn't done so. Says it's required to work with the city's processes, but doesn't need to work with bad faith efforts by the city to slow down the process.

Qs for TM's lawyer: When dealing with issues on this kind of a project, it's a bit of a different scenario than how those processes would usually be done. Hundreds of permit requirements from a city like Burnaby, a lot of working collaboratively with city, etc.

City's entered into a settlement agreement w/ TM. That's privileged info, though. But when there's that many permits, etc., the belief from TM was that the city would take permit apps on a rolling basis, accept and approve them as needed while working with TM.

Expectation was city would have notified them if otherwise.

And that is the hearing. The CER will issue its decision in writing. Expected within a couple of weeks, I believe.