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Strong support for Joint Review questioning and final hearings in Kitimat, draft report says

The Northern Gateway Joint Review secretariat has issued a draft final report on the May 30 procedural conference concerning the final two phases of the hearings, questioning and final arguments. There was strong support from some participants, including Northern Gateway, for holding portions of the questioning round and final arguments in Kitimat.

The JRP released the draft report on June 6, 2012. The JRP’s original plan for final hearings for questioning will take place in three locations Prince Rupert, BC, Prince George, BC and either Edmonton or Calgary, AB.

The JRP had argued that the three locations were centrally located, have adequate facilities and reasonable transportation access. The most contentious issue was that the plans bypassed Kitimat, which is to be the terminal for the Northern Gateway pipeline and the shipping point to send the diluted bitumen to Asia.

The Joint Review secretariat reports that eight participants wanted a hearing at Kitimat. According to the report, Northern Gateway suggested that the discreet issue of “shipping and navigation” could be moved to Kitimat, due to the local interest. Northern Gateway told the JRP that they would have upwards of 10 to 20 witnesses on the issue of marine environment, as well as related support personnel and asked for a early scheduling decision because their “experts on this issue would be arriving from distant locations and need some timing certainty for their appearance.”

The JRP says the District of Kitimat agreed with Gateway and also suggested issues relating to the marine terminal component of the Project, potential impacts on aboriginal interests, environmental effects of the marine terminal and construction through the coastal mountains.

Cheryl Brown, of Douglas Channel Watch, suggested that issues relating to the “marine terminal site” could be added to this location.

According to the JRP report, the Haisla Nation recommended that hearings be held in the town and not Kitimaat village. Both the Haisla and District of Kitimat emphasized that there would be no logistical issues in terms of accommodation or transportation. “Both groups noted that many hearings have been held in the community in the past, without any problems,” the JRP report notes.

The Haisla noted that if there were no hearings in Kitimat, the nation would prefer that hearings on its issues be held in Vancouver.

The JRP said the majority of parties either took no issue with Prince Rupert or suggested an additional venue be added (such as Kitimat), but five participants questioned why Prince Rupert was considered as it is not directly along the proposed pipeline route.

Those interested in the Alberta hearings appeared to be evenly split over whether the hearings should be in Edmonton or Calgary.

In the conference, as it had in an written submission, Coastal First Nations suggested that Vancouver be added as a final hearing location with videoconferencing of the hearings to both Prince Rupert and Kitimat because of the number of counsel, witnesses and experts coming from, or flying through Vancouver.

The Wet’suwet’en Nation repeated that they would like to have hearings either in Burns Lake or Smithers if more hearing locations were added.

The Gitxaala suggested potentially having Gateway’s cross-examination in one location and cross-examination of intervenors in other locations more convenient to them (i.e. Gitxaala in Prince Rupert). Gateway opposed this idea, stating that if an issues based hearing is going to be adopted, it should be used in its entirety.

All of the participants in the conference agreed that a location be centrally located, have adequate facilities and reasonable transportation access. The JRP notes: “The Haisla in particular noted the centrality of Kitimat and the fact that all three Project components are contained in their territory. The Wet’suwet’en noted that it is important that its hereditary chiefs be able to witness the hearings.”

Most of the participants in the conference supported the use of technology and remote access during the final hearings. The report notes:

The Haisla raised some general concerns about the integrity of the evidence obtained and, for that reason, is of the view that parties who seek to have their witnesses participate remotely should first have to obtain the consent of those that would cross-examine the witness. The Haisla also agreed that procedures need to be implemented to ensure that the information is being provided by witnesses and not prompted by others.

According to the JRP report: “The use of video conferencing facilities was generally seen to be preferable to teleconference capability only. The Wet’suwet’en noted the importance of seeing those providing evidence.”

The Haisla and other parties argued that Aboriginal groups need a clear understanding of the Project before answering questions on potential impacts; questioning Gateway witnesses will assist with that. As such, issues of Aboriginal and treaty rights, the potential impacts of the Project on Aboriginal interests and consultation should be addressed last.

The Government of Canada agreed that it made sense to have issues relating to Aboriginal interests and consultation addressed after other technical issues. Gateway did not believe that these issues needed to be addressed all together at the end of the entire hearing. Rather, issues relating to Aboriginal and treaty rights and interests could be heard at the end of the coastal hearings (either in Prince Rupert or Kitimat). Issues relating to Aboriginal and treaty rights and interests could similarly be dealt with at the end of the Prince George hearings to address these issues for the pipeline component of the Project.

There was also discussion over the location of final arguments.

The JRP suggested that final arguments take place in Prince Rupert and either Edmonton or Calgary with mechanisms to allow parties to participate remotely.

Northern Gateway and ten other participant recommended that final arguments take place in Kitimat instead of Prince Rupert. One party suggested that final argument should take place entirely in one single location (Calgary or Edmonton) while again there was pretty well an even split between the two Alberta cities. Again, the Coastal First Nations suggested that Vancouver be added as a final hearing location with videoconferencing of the hearings to both Prince Rupert and Kitimat.

Participants

Northern Gateway Pipelines Inc. (Gateway or applicant)

Alberta Federation of Labour (AFL)

Alexander First Nation (AFN)

Cheryl Brown

Canadian Association of Petroleum Producers (CAPP)

Cenovus Energy Inc (Cenovus);

Nexen Inc (Nexen);

Suncor Energy Marketing Inc (Suncor) and Total E&P Canada Ltd (Total)

Coastal First Nations (CFN)

Communication Energy and Paperworkers Union (CEP Union)

Council of the Haida Nation (Haida)

District of Kitimat

East Prairie Metis Settlement (East Prairie)

Horse Lake First Nation (Horse Lake)

Enoch Cree Nation,

Ermineskin Cree Nation,

Samson Cree Nation

Kelly Lake Cree Nation (Cree Nations)

Fort St. James Sustainability Group (FSJ)

Gitxaala Nation (Gitxaala)

Government of Alberta

Government of Canada

Haisla Nation (Haisla)

Living Oceans Society,

Raincoast Conservation Foundation and ForestEthics Advocacy (Coalition)

MEG Energy Corp. (MEG)

Northwest Institute for Bioregional Research (NWI)

Office of the Wet’suwet’en (Wet’suwet’en)

Province of British Columbia (BC)

Sherwood Park Fish & Game Association (Sherwood Park F&G Assn)

Swan River First Nation (Swan River)

Terry Vulcano

Josette Wier

Panel Commission Draft Final Report Procedural Conference 30 May 2012 (pdf)

Northern Gateway Joint Review questioning and final argument hearings skip Kitimat, most of the northwest BC pipeline route

The Northern Gateway Joint Review Panel questioning hearings and final arguments will bypass Kitimat and most of the communities along the proposed pipeline route, according to a letter to all intervenors from the JRP prompted by questions from the Gitxaala Nation.

The Joint Review Panel has not yet issued an official and final procedural directive concerning the final hearings, and in response to the Gitxaala letter, the JRP secreteriat will convene a conference on May 30, in Calgary to set up that procedure. The three panel members will not be present at the conference.

In the letter to the intervenors, the JRP proposes:

Final hearings for questioning will take place in three locations. The Panel intends to hold these hearings in Prince Rupert, BC, Prince George, BC and either Edmonton or Calgary, AB. These locations are centrally located, have adequate facilities and reasonable transportation access. Would fewer than three locations be appropriate? What are your comments on the locations chosen by the Panel?

As for the final argument hearings, the Joint Review Panel says:

The Panel anticipates allowing parties to present final argument either: (i) orally;
or (ii) in writing. On an exception basis, parties may request permission of the
Panel to allow final argument on a specific topic both in writing and orally.
The Panel anticipates holding hearings for final argument in two locations;
namely Prince Rupert, BC and either Edmonton or Calgary, AB. Mechanisms will
be established to allow parties to participate remotely (i.e. via telephone or other
electronic means). Do you have any input on these locations?

For the questioning period, the Joint Review Panel says it anticipates that it will sit from Monday to Saturday for two week periods, followed by a one week break. Standard sitting hours would be from 8:30 a.m. to 1:00 p.m.

Cheryl Brown, representing the Kitimat group Douglas Channel Watch, has already objected to the fact the Joint Review Panel has apparently decided to bypass Kitimat.

The location of the panel should include Kitimat as it is the community
experiencing the highest impact from the project -land and marine. The citizens
of Kitimat need to have the opportunity to hear the proceedings and how it will
potentially impact their future. Accommodations can be provided in Terrace with
bus transportation provided if needed and this is standard practice for other large
events. Air travel into Terrace/Kitimat is reasonable with good transportation to
Kitimat. Rupert has some exposure to the project but to justify that the hearings
take place there due to adequate facilities, that it is central and has reasonable
transportation access is not valid. Rupert is not central for the Northwest and the
issue of getting from the terminal to the city by ferry is hardly reasonable.

The proposed schedule seems adequate. For intervenors with limited financial
resources any length of stay outside their own area can be difficult.

Note that in its letter the JRP asks: “Would fewer than three locations be appropriate?” There is no suggestion that the number of locations be expanded.

This is despite the fact throughout the hearings, Sheila Leggett, the chair has repeatedly told intervenors in each location to hold back their comments until the final hearings. In addition, during the intervenor phase of the hearings, questioning was not permitted, only statements on local or traditional knowledge.

The JRP letter to intervenors goes on to say

The Panel intends to have questioning on oral evidence completed prior to
questioning based on written evidence pertaining to the List of Issues.
Questioning of witness panels will proceed at each location based on issues.
These issues largely mirror the List of Issues set out in the Hearing Order (dated
5 May 2011) and discussed in the Panel Session Results and Decision (dated
19 January 2011). The Panel intends to address each issue listed below in
relation to the entire Project at only one location. The location for each issue is
as follows:

Prince Rupert

(a) Potential Impacts of the Proposed Project on Aboriginal Interests
(socio-economic matters; asserted and proven Aboriginal and treaty
rights)
(b) Environmental Effects
(c) Socioeconomic Effects
(d) Consultation (with the public and Aboriginal groups)
(e) Safety, Accident Prevention and Response (related to the marine
terminal and marine transportation)

Prince George

(a) Potential Impacts of the Proposed Project on Landowners and Land
Use (pipeline crossings; depth of cover; impacts on agricultural soils)
(b) Routing (general route of the pipeline and route selection criteria).
General location of the facilities and siting of a marine terminal.
(c) Design, Construction and Operation
(d) Follow up and monitoring
(e) Safety, Accident Prevention and Response (related to the pipeline)

Edmonton or Calgary

(a) Need for the Proposed Project (supply and markets; commercial
support; economic feasibility)
(b) Potential Impacts of the Proposed Project on commercial interests
(c) Financial and Tolling Matters (tolling structure and methodology;
proposed financing; financial responsibility of the applicant)

The letter asks, “Do you have any additional issues for each hearing location or any input on the general format identified?”

It also asks intervenors questions like: “What parties’ witnesses do you anticipate questioning during the final hearings? What issues do you anticipate you will ask questions about? How much time do you anticipate you will require for questioning for each issue?

The panel says it is considering a process for expert witnesses which would entail having expert witnesses for parties with conflicting opinions seated together in a single witness panel and questioned at the same time, mainly about issues that “are highly technical in nature” so the panel can “assess complex expert evidence, understand differences, and focus on certain technical issues in an efficient manner.”

The letter goes on to say that the panel intends to permit “questioning of witnesses by telephone and is exploring other remote means.”

However, the letter to the Joint Review Panel from Cheryl Brown of Douglas Channel Watch clearly shows the kind of problems faced by those “directly affected” by the pipeline if they live in rural northwestern British Columbia.

Technology is limited as I am rural and do not have high speed internet. Could
the use of local video conferencing facilities be utilized. The panel needs to consider that there are many intervenors that are independent in the process and do not have resources to participate that others may have. It bears on the JRP
to ensure there is the ability of all to participate in the process in a reasonably fair and equitable way and the panel needs to consider other ways to configure the hearings

Telephone questioning during the NEB KMLNG (Kitimat LNG) hearings in Kitimat in June was awkward to say the least, and often plagued by technical problems in getting lines up and staying connected. Telephone questioning also meant that the energy industry lawyers actually in the hearing room at Riverlodge had a distinct advantage over the remote questioners.

The letter of the Joint Review Panel by Cheryl Brown of Douglas Channel Watch also outlines the issues the environmental group will be trying to bring before the panel:

Here are issues that need to be addressed within the communities highly affected
i.e. Kitimat
•Routing: through the tunnel and the difficult terrain of the Kitimat River,
•Siting of the marine terminal,
•Safety, accident prevention response related to the terminal and marine
transportation, environmental effects on the estuary, Douglas Channel
and marine route.
•Socioeconomic and environmental effects are different across the entire
pipeline. To address then in one place does not allow for adequate
participation by intervenors from other areas to address the areas that are
of concern. A significant number of intervenors are without funding and
are privately involved in the process. The hearings have to acknowledge
this.
•Aboriginal interests are unique to different areas and the costs for travel to
one place would be a burden.
•Consultation with the public needs to be represented in more locations.
The public that has been involved as intervenors do not have resources to
travel. The panel needs to consider this.

Brown goes on to say that the use of expert panels “sounds interesting” but she adds she is “not sure how one would interact with the panel. More details are required.”

The Joint Review Panel’s proposed schedule, which basically eliminates effective participation by those most affected by the pipeline, raises a key question at the national political level. Is the fact the panel is skipping most of the communities involved a return to the National Energy Board tradition that it is nothing more than a private club for Calgary energy lawyers or is it a result of pressure from Prime Minister Stephen Harper and Natural Resources Minister Joe Oliver to speed things up?

The controversial Enbridge Northern Gateway twin pipelines, if approved, will transport bitumen from Alberta to the port of Kitimat and condensate from Kitimat to Alberta. Although there is significant opposition to the pipeline in British Columbia, Prime Minister Stephen Harper has made clear the pipeline is a national priority. Natural Resources Minister Joe Oliver has repeatedly condemned people who oppose the pipeline as “radicals.”

Update: District of Kitimat, Haisla Nation to question JRP schedules bypassing Kitimat

In separate e-mails to Northwest Coast Energy News, Kitimat mayor Joanne Monaghan and Haisla Nation Chief Counselor Ellis Ross both say they will be file objections with the Joint Review Panel questioning the JRP’s position in bypassing Kitimat in both the questioning round and final arguments.

JRP Procedural Direction No 7 (pdf)

JRP letter to all parties Procedural Conference on Final Hearings (pdf)

Letter to JRP from Cheryl Brown of Douglas Channel Watch (pdf)

Editorial: Calgary Herald calls Northern Gateway opponents “eco-pests”

You can expect a newspaper in Alberta to support the oil-patch, that’s a major part of its audience, its advertising market, its mandate. A newspaper supporting local industry is perfectly fine in a free and democratic society.

The question has to be asked: does that support include juvenile name calling, worthy of a spoiled 13-year-old? In an editorial Friday, The Calgary Herald calls the opponents of the Northern Gateway pipeline “eco-pests.”

Note I said “spoiled” 13-year-old. There are many 13-year-olds across Canada who are clearly more mature than The Calgary Herald editorial board.

Editorial: Eco-pests force government to streamline hearings

The editorial goes goes over the same old line that environmentalists are “stacking” or “hijacking” the hearings. The Herald, like the rest of the Alberta media, trumpets the expose that two people out of the more than 4,000 who signed up for the hearings are from Brazil.

Those two people from Brazil, who may have signed up inadvertently, are just .005 per cent of the total number who want speak, either as intervenors or present 10-minute comments.

So far no foreign billionaires have appeared before the hearings. Why not? After all, foreign billionaires can afford to hire all the fancy energy lawyers they need from the glass towers in downtown Calgary if they wanted to be real intervenors.

So far everyone who has appeared before what the Joint Review Panel is now calling “Community Hearings” are, to use a shopworn but applicable phrase, “ordinary people,” most of them members of First Nations directly affected by the Northern Gateway pipeline project.

The Herald says:

Regulatory reviews must be efficient and credible, and the government must not sacrifice sound environmental review for the sake of haste. But when the process becomes so cumbersome that Canada becomes uncompetitive, the federal government is rightfully forced to act.

That paragraph is typical of the coverage from The Calgary Herald going back years. Up until recently, every story in The Calgary Herald added a mandatory paragraph about “First Nations and environmentalists” opposing the Northern Gateway pipeline, without ever going into details, without ever bothering to send a reporter across the Rockies into British Columbia. Only now that there is widespread opposition to the pipeline across British Columbia is the Herald paying condescending attention. That sentence “must not sacrifice sound environmental review” is just another meaningless example of an obligatory journalistic catch phrase, added to the editorial in a vain attempt to achieve “balance.”

No wonder the media is losing credibility at warp speed.

Do you realize that while Calgary may be the headquarters of the energy industry in Alberta, Calgary itself is no where near the route of the Northern Gateway pipeline? That means that while Calgary gets let’s say 98 per cent of the benefits from the Northern Gateway pipeline, it takes absolutely none of the risk.

So while the Herald says

Warning that lengthy reviews cause investment dollars to leave Canada, [Natural Resources Minister Joe] Oliver properly enunciated a simple goal: “one project, one review in a clearly defined time period.” Imagine a process where each side presents its facts and a decision is rendered.

One has to wonder if the attitude would be any different if a major pipeline breach would mean that the entire city of Calgary would have to exist on bottled water for two or more years, a scenario for Kitimat if there is bitumen pipeline breach along our water supply, the Kitimat River (entirely possible given all the landslides here). If the Calgary water supply was threatened, how many people in Calgary would sign up to speak to a Joint Review Panel?

One has to wonder how quickly the Herald editorial board and its oil-patch loving columnists would change their minds after say just two or three weeks of lining up for those water bottles?

The problem is much deeper than that. The Calgary Herald editorial is only reflecting an attitude that seems to be widespread in the city. Over the past several weeks, there have been numerous posts on Twitter hashtagged #Kitimat, saying that because Kitimat is not within the actual boundaries of the Great Bear Rainforest, we apparently don’t live in the rainforest. Some tweets suggest that if you actually say that Kitimat is in the middle of a vast coastal rainforest, you are lying, anti-Conservative (highly likely) and (here quoting the Herald, not the tweet) an “eco-pest.”

The political agenda on the Northern Gateway pipeline is being driven by people in Alberta who live far from the pipeline route itself even in Alberta, are at least 2,000 kilometres from Kitimat, have never been to Kitimat, make up their minds by looking at maps (apparently they don’t even bother to look at Google Earth which would show all the forest around Kitimat) and won’t have to lift a finger to clean up after a pipeline breach or tanker disaster. Given attitude of many in Alberta toward taxes, they certainly wouldn’t want to help pay for the clean up either. They’ll leave it to the taxpayers of British Columbia and the people of northwestern British Columbia to deal with the mess, while again, reaping all the benefits from the energy industry.

This attitude ranges from twits on Twitter to the academic community.

About century ago, there was a similar attitude seen in academia, in the newspapers, and with the “man on the street” (since women didn’t count back then). It was the attitude in Europe toward African colonies, that the colonies existed for the sole benefit of the “mother country.”

Alberta, it seems, increasingly sees northern British Columbia as a colony, existing for the sole benefit of that province. It is likely that if some Calgary academic did some research, that academic could find a nineteenth century editorial referring to revolting colonials or rebelling natives as “pests.”

U of Calgary reports says exporting oil through west coast will bring billions, but no info on environmental costs

Energy

A report issued by the University of Calgary School of Public Policy says if Canadian heavy oil is piped to the west coast and then shipped to Asia and possibly California, that could add $131-billion US to the Canadian economy between 2016 and 2030.

The report suggests it offers solid numbers in favour of pipeline construction to government and industry. For example it says 649,000 person years of jobs could be added to the Canadian economy over the next few years.

The report is based on differentials on oil prices in various world markets and while the final figures are not certain, the overall tone of the report is optimistic.

There is one flaw in the report. There is no consideration whatsoever by the Calgary economists of the costs of a pipeline breach, major or minor, in the wilderness of northwestern British Columbia nor the cost of a tanker disaster on the west coast. That just does not just include the costs of an extended cleanup of a spill, it also doesn’t consider the costs to the fishery and tourism industries by any such disaster. There is no estimation of the costs to the overall business and the economy of any community affected by any spill. Nor is there any consideration of the long term effects on the environment itself of any such accident.

Read the report here. University of Calgary report on oil exports (pdf)

Time to settle First Nations land claims: Financial Post

Diane Francis, columnist, Financial Post

Time to settle First Nations land claims

The time has come for Canada and the provinces to make timely and responsible resource development the country’s number one national interest. This represents a policy priority that has never existed but is absolutely essential today to protect Canadian living standards and rights.

To date, Canada has behaved like a patchwork quilt of special interests and various levels of government whose leaders have bobbed and weaved but never devised a just or swift means of settling, or rejecting, land claims by First Nations…..

This week, the opening shot of what could be a monumental battle was fired when First Nations representatives from British Columbia came to warn Big Oil in Calgary that they would obstruct any linkage to Asia via pipelines, and presumably, rail lines, through their territory. If joined by others, and this is a given, their obstructionism for gain, or ideology, will financially damage landlocked Alberta, the prairies, the North and therefore the living standards of all Canadians.

Frankly, I don’t blame First Nations for obstructing development because they face a politicized and dysfunctional court system that never settles, never seems to reject new claims, never deals with any expeditiously and never imposes a deadline on requests.

Editor’s note: Read the quote from Financial Post business columnist Diane Francis carefully. In the key paragraph quoted here, she mentions the economy of Alberta, the prairies and the North. Somehow she neglected to mention the economy of the British Columbia, and the impact of the proposed Enbridge Northern Gateway pipeline, for good or ill on BC. A conservative columnist, Francis, seems to assume that First Nations are against the pipeline simply for gain or “ideology,” and that settling Land Claims will lead to the construction of the pipeline,