Posted on January 07, 2013

Photo by Larissa Sayer

An interview with Watershed Sentinel correspondent Arthur Caldicott who has been following the hearings for the Northwest Institute for Bioregional Research

When did the hearings for Enbridge’s Northern Gateway Pipelines Project begin and when do they end?

In the Joint Panel Review of Enbridge’s Northern Gateway Pipelines Project, three different phases of hearings have been scheduled, each serving a specific function:

• Community Hearings for Oral Evidence. These
took place in communities mostly along the pipeline or
tanker routes from January to April, 2012. The transcripts
from these hearings are part of the evidentiary record.
• Final Hearings – Questioning Phase. These hearings
began in Edmonton on September 4, Prince George,
October 9, and Prince Rupert, December 10. The Joint Review
Panel (JRP) added weeks of additional hearings in
Prince Rupert, from February through May, 2013. The purpose
of the questioning hearings is to ask questions about
the evidence on record. The evidence includes the application
and the many updates and addenda to it, reports and
other documents submitted by intervenors and other parties
to the proceedings, information requests and responses,
and all transcripts.
• Final Hearings – Argument Phase. These are
scheduled to begin in late May 2013 and through June.
How many hearings have you been following?
December 15 was the 47th day of the hearings that
began in September, and was the last hearing day in 2012.

What is the process for the hearings?

See above re: the purpose of the questioning hearings.
In her capacity as Chairperson of the JRP, Sheila Leggett
has been getting increasingly more insistent that people
stick to asking questions of the evidence which has been
filed, NOT lead into their questions with preambles, NOT
get into argument (which they are supposed to do in the final
stage of the hearing process), and NOT repeat questions
which have been asked before. This last condition forces
questioners to read the transcripts so they are not going
over old ground.

The hearings have been organized with different issues
assigned for questioning in Edmonton (generally financial
and regulatory matters), Prince George (terrestrial
issues relating to the pipeline and Kitimat terminal), and
Prince Rupert (marine issues including terminal and tankers,
and consultation).

The Edmonton Hearings gave evidence relating to Volumes
1 and 2 of the Application:
• Economic need for the Project, including its purpose,
alternatives, supply and markets, commercial support
and economic feasibility
• Potential impacts of the proposed Project on commercial
interests
• Financial and tolling matters, including the tolling
structure and methodology, proposed financing, and the financial
responsibility of the applicant

The Prince George Hearings included 3 subject areas:
• Pipeline & Terminal Design & Engineering
• Pipeline Operations, Emergency Preparedness &
Response
• Pipeline & Terminal Environmental & Socio-Economic
Assessment

The issues covered by the Proponent in Prince Rupert:
• Marine, Environmental & Socio-Economic Assessment
• Marine Emergency Preparedness & Response
• Kitimat River Valley
• Aboriginal Engagement & Public Consultation
• Shipping & Navigation

What highlights of the hearings stand out for you?

The hearing is organized such that Northern Gateway
Pipelines (NGP) puts up “panels” of witnesses for each topic
area noted previously. These witnesses answer questions
about the evidence which has been filed. No “friendly”
questioning is allowed – that means that the Canadian Association
of Petroleum Producers (CAPP), or the group of
companies who want to ship product on the pipelines will
not question NGP.

Some intervenors also put up much smaller panels,
where NGP, CAPP or the shippers group (or, occasionally,
other intervenors) have indicated they want to ask questions.
These tend to be brief – an hour or two, perhaps.
When NGP, CAPP or the shippers group are questioning
intervenor experts, they are generally not actually interested
in the evidence. Most of their questions go to discrediting
the witnesses in terms of professional qualifications or
experience or even motivation. It is quite transparent, and
sometimes distasteful.

The one place where there was none of this was when
Tom Gunton, a witness for the Coastal First Nations, was
being questioned. He would have none of the bullshit being
directed at him, particularly by Richard Neufeld, NGPs
lead lawyer. Instead, he trod over the questions and provided
well-informed criticisms of many aspects of NGP’s
evidence. It was clear, even through the transcript, that he
was a star – knew the proponent’s stuff and its weaknesses
and shortcomings, and spoke with complete authority.

Often at the end of a panel’s sitting, the Joint Review
Panel members will have some questions. Kenneth Bateman,
one of the JRP, asked Gunton a couple of questions on
Sept. 28. To the first, Bateman did not like Gunton’s reply
and comes across as curt and arrogant in his response:
Mr. Bateman asked about earlier references to “alternate
mechanisms.” Dr. Gunton replied, “With all due
respect, I would not want to be in the position that you’re
in now having to try to make a decision on such a huge controversial
issue. It’s tough – so is there another way of doing
it? Yes, there is.” “What needs to happen is the parties need
to get together and see if they can work out some of these
differences without tossing it out.” Mr. Bateman responded,
“The decision is not a referendum.”
With respect to polarized views by many parties
right across Canada, Mr. Bateman asked how these might
be balanced. Dr. Gunton replied, “The probability of building
a project such as this with this degree of opposition is
virtually zero.”

The most entertaining moment was when Guujaaw,
President of the Council of the Haida Nation, was “questioning”
a Northern Gateway panel in Edmonton, Sept. 20.
He was irrepressible and insubordinate throughout.
Guujaaw opened by explaining that he has learned
that people from industry and corporations love their families
and generally are good people. “But I think it’s been a
long time since all of us realized that it’s nice guys that are
also destroying this world.”

Do you feel that people are given adequate time/opportunity
to voice their thoughts about the pipeline?

Within the framework of the hearing process, my answer
is yes, every intervenor has adequate time and arguably,
opportunity.
As these processes go, the JRP has given more time
and opportunities for people to submit comments, deliver
statements, file evidence, and argue the case, than ever before
in Canada. Unfortunately, the legislation that governs
the JRP, specifically the National Energy Board Act and the
Canadian Environmental Assessment Act, is not designed
to “work out differences” (in Gunton’s phrase). People
could submit comments and deliver statements until this
generation is all dead, and in the end the legislation, past
practice, and government of the day, will have biased the
outcome heavily in favour of the project and the proponent.
To go back to your word “opportunity”, there is no
equality in the process. The proponent comes with lawyers
and the best experts in the world and endless funds to work
24/7 in developing and promoting the project. Some of the
intervenors – CAPP, the shippers, the Government of Canada
– are similarly able to engage fully in the process. It’s
quite different for the intervenor groups – First Nations, environmental
and public interest groups, and citizens. The structural
and economic imbalance puts a different spin on
the word “opportunity” and so the answer is no.

Who have been speaking at the hearings?

In addition to the proponent, CAPP, shippers and
government, there are First Nations, some of whom have
come well armed with good lawyers and good witnesses,
notably the Coastal First Nations, and some of whom try to
represent themselves and do so poorly - not well informed,
and not good at structuring questions. Other intervenor
groups, such as “the Coalition” as it is referred to (Rainforest
Conservation Foundation, Forest Ethics Advocacy, Living
Oceans Society) and represented by Barry Robinson of
EcoJustice, are professional and effective.

Two women from Fort St. James, Brenda Gouglas and
Kandace Kerr, are intervening as the Fort St. James Sustainability
Group. They know their stuff, and even in their
questions have demonstrated mastery of the process and the
material. Chris Peters, an engineer from Prince George, is
intervening on his own behalf – he’s feisty at times, but impressive.
Another impressive individual is Murray Minchin,
a postal worker, representing Douglas Channel Watch.

***
Arthur Calidicott writes for the Watershed Sentinel
and is an energy consultant for various organizations.