The review of the Kinder Morgan Trans Mountain pipeline expansion has been plagued by a critical lack of evidence, members of a National Energy Board panel heard in Burnaby last week.

Chris Tollefson, lawyer from the Environmental Law Centre representing intervenors BC Nature and Nature Canada, said the evidence presented in the hearings is insufficient to prevent the panel from discharging its duty under the Canadian Environmental Assessment Act.

“Fundamentally we say there is a lack of evidence for you to do your job,” he said.

On Wednesday, the federal government announced it will consider the upstream greenhouse gas implications of pipelines, but no project reviews will start over. 

The changes are too little, too late, according to Ecojustice lawyer Karen Campbell.

“These interim measures are a welcome band-aid, but they are not enough to inject science and evidence-based decision-making into the Kinder Morgan review process,” Campbell said. “The outcome of the National Energy Board review must still be to reject this project, until the flaws in the application are remedied, and the full regional impacts of the project are fully considered.”

At the hearing last week, Tollefson also told the panel the lack of cross-examination “has vexed the process from the outset.”

On April 2, 2014 the NEB released a “hearing order” instructing all intervenors to raise concerns by way of written “information requests.”

The order reduced the NEB review of the pipeline to a “mere paperwork exercise,” according to Gregory McDade, a lawyer representing the City of Burnaby.

At the NEB hearings for the Enbridge Northern Gateway pipeline, Tollefson, again as council for BC Nature and Nature Canada, spent 26 hours cross-examining witnesses testifying for Enbridge. There were more than 90 days of cross-examination.

Tollefson told the panel that without cross-examination “the process had basically allowed the proponent to introduce into the record unsubstantiated, unidentified expert testimony that could mislead the panel.”

The panel has the authority to reopen the process to cross-examination or recommend the application not be approved by the federal cabinet.

Tollefson urged the panel to consider acknowledging the process is inadequate.

“It’s your duty in terms of information gathering, it’s your duty to press pause at this point to allow for us to get to the truth of these matters in order that the public interest be served.”

He added that there are areas where the “record is plainly in conflict” and where the panel has been “left with a completely untenable task of making a recommendation on a record that is wholly inadequate.”

“We believe — in our submission, it is important to get to the truth of the matter, for the science issues to be fought out on a level playing field where there is no closure, where the proponent can't rag the puck till the clock is run down.”

The hearings continue this week in Burnaby and will continue in Calgary for one week from February 2-5.

Photo: Burnaby Mayor Derek Corrigan being interviewed about Kinder Morgan's Trans Mountain pipeline. Photo by Mark Klotz.

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Starting today the federal government will face 18 separate challenges against the Enbridge Northern Gateway pipeline in the Federal Court of Appeal in Vancouver.

A consolidated group of environmental organizations, one labour union and First Nations are fighting the approval of the project on the grounds that the federal government violated First Nations rights, failed to protect species at risk and did not consider the full impacts of an oil spill in its decision.

Chris Tollefson, lawyer from the University of Victoria Environmental Law Centre and counsel for appellant B.C. Nature, said the case demonstrates the importance of due process when making decisions on major infrastructure projects like oil and gas pipelines.

“This case has the potential to affirm how important it is to have a robust federal environmental assessment law that holds project proponents to account,” he said.

Challenges presented by First Nations appellants will be presented over the next two days, Tollefson explained, with environmental groups following. The trial will stretch over six days, the longest a case has ever been before the Federal Court of Appeals.

Appellants represented in the hearing include the Gitga’at First Nation, Gitxaala Nation, Haida Nation, Haisla Nation, Heiltsuk Nation, Kitasoo Xai’Xais Nation, Nadleh Whut’en, Nak’azdli Whut’en, B.C. Nature, ForestEthics Advocacy Association, Living Oceans Society, Raincoast Conservation Foundation and Unifor.

The 1,177-kilometre Northern Gateway pipeline is a twin pipeline proposed to carry diluted bitumen from the Alberta oilsands to the Douglas Channel in Kitimat, B.C. A westbound pipeline would carry up to 525,000 barrels of diluted bitumen per day to the B.C. coast, while an eastbound pipeline would carry 193,000 barrels of condensate per day to Alberta. The project received federal approval in June 2014, pending more than 200 conditions.

The pipeline review process galvanized the environmental community and First Nations across B.C. in an unprecedented wave of opposition. 

“Allowing these proposals to proceed is not an option,” Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, told the audience at a press conference this morning.

“All of Haida Gwaii is going to stand up to protect our island,” Peter Lantin, president of the Haida Nation said. "The threats being posed to us are leading to unprecedented collaboration.”

"If this decision is not overturned, decades of work with government and Haida will be unravelled," Lantin said.

"Canada hasn't looked after the lands and people,” Rueben George, from the Tsleil-wau-tuth First Nation, said. “That's why these Nations are here."

A “United Against Enbridge” rally is set to take place on the steps of the federal court today at 12:30pm.

"Enbridge cannot be trusted to build and operate a pipeline that exposes some of our most precious watersheds and ecosystems to the risk of a catastrophic oil spill," Nikki Skuce, senior energy campaigner with ForestEthics Advocacy, said in a press release.

Ivan Giesbrecht, spokesman for Northern Gateway, said Enbridge recognizes the rights of First Nations.

"Our ongoing priority is to continue to build trust, engage in respectful dialogues and build meaningful partnerships with First Nations and Métis communities," Giesbrecht said in a press release.

"Despite this litigation, we remain committed to working collaboratively with the applicant First Nations and would be very pleased to develop mutually beneficial solutions with them."

For a legal backgrounder on the challenges being raised in this case, see West Coast Environmental Law’s summary.

Image: Kerri Coles

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A new lawsuit filed Monday challenges the federal Cabinet's decision to approve the Enbridge Northern Gateway pipeline. The suit, launched by the Federation of BC Naturalists, or BC Nature, asks the Federal Court of Appeal to allow an application that declares the pipeline’s June 17, 2014 approval invalid. Today is the last day parties may apply to the Federal Court to initiate a judicial review of the project's approval.

BC Nature filed a previous lawsuit in January 2014 against the Joint Review Panel’s (JRP) recommendation the federal government approve the pipeline. That suit, filed by the University of Victoria’s Environmental Law Centre (ELC), is still ongoing and challenges the JRP’s justification of “serious harm” to caribou and grizzly bears as well as findings regarding the consequences of a potential major oil spill.

“In the lawsuit filed today, we argue that due to fundamental flaws in the JRP’s report, Cabinet was deprived of the legal authority to make a final decision on the pipeline,” Chris Tollefson, ELC Executive Director and lawyer for BC Nature, said.

“Cabinet was also legally required to give reasons for its approval, which it utterly failed to do,” he added. “For these and other reasons, Cabinet’s decision lacks a tenable legal foundation.”

The Enbridge Northern Gateway pipeline was approved by Cabinet in June, six months after the JRP recommended the pipeline be built subject to 209 conditions.

Natural Resources Minister Greg Rickford said the federal approval of the pipeline took into consideration the JRP’s claim the project is “in the public interest.”

Five legal challenges were filed against the JRP's recommendation to approve the pipeline and at least two have now been launched against Cabinet's approval. Last week the Gitxaala First Nation filed a suit with the Federal Courts, arguing the project would infringe on their Aboriginal rights and title and that the Nation was not properly consulted before the project was approved.

If the Federal Court of Appeals approves BC Nature’s challenge, the group will have five days to file a request for judicial review of Cabinet’s decision to approve the project.

“BC Nature is one of British Columbia’s oldest conservation organizations. Yet in our long history, we have never before felt compelled to go to court to defend our mission and the work we do to protect wildlife across the province,” Dr. Kees Visser, BC Nature President, said. “But with this potentially catastrophic project, we had to take a stand.”

Visser, a former oil and gas exploration geologist, added: “BC Nature is confident in the merits of both of its lawsuits challenging the approval of this ill-conceived project and looks forward to presenting them at the Federal Court of Appeal.”

Image Credit: Dogwood Initiative via Flick.

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A lawyer representing the City of Burnaby says the National Energy Board (NEB) has turned its review of Kinder Morgan’s Trans Mountain pipeline into a “mere paperwork exercise” by cutting all cross-examination from the process.

“We were expecting that there would be public hearings and cross-examination of the evidence,” Gregory McDade said at a City of Burnaby information session last week. “There are no hearings … There will be no public examination of Kinder Morgan’s evidence whatsoever.”

In a YouTube video from the information session, McDade deconstructs the NEB’s April 2nd “hearing order,” noting that the only way for the City of Burnaby to raise concerns is now by submitting written “information requests.” This applies to all intervenors, including the Province of B.C. and the Department of Fisheries and Oceans.

“They call it a hearing order, but it should be called a ‘no hearing’ order,” McDade quipped.

“What we have here is a mere paperwork exercise. It is not a hearing and it is not public. It is not independent. All three panelists on the National Energy Board are from the oil and gas industry.”

Kinder Morgan’s Trans Mountain proposal would triple the amount of oil the company ships to Burnaby and increase the number of oil tankers travelling through Vancouver Harbour and the Gulf Islands seven-fold.

McDade said he’d planned on calling citizens of affected Burnaby neighbourhoods to testify, but now that won’t be possible.

“Our chances to represent your voices and your questions are no longer there,” he told Burnaby residents at the information session. “It’s going to have to go through information requests.”

On Saturday, hundreds of citizens turned out for a rally against the Kinder Morgan pipeline in Burnaby. Photo: Jennifer Castro via Flickr.

The only true oral hearing segment of the process is for the presentation, and questioning of, aboriginal traditional evidence. The NEB calls the final summary arguments "oral hearings," but they are near the end of the process and no new evidence can be presented at that time.

Karen Campbell, a staff lawyer for Ecojustice, told DeSmog Canada the information request process is no substitute for cross-examination.

“A virtual exchange of documents online, which is what this process primarily is, will not allow intervenors to really get to the bottom of the issues around this proposal," Campbell said. “Given how utterly contentious this project is, providing an opportunity for oral cross-examination is a critical piece of the puzzle.”

"Radical change" to process

During the Enbridge Northern Gateway pipeline hearings, there were more than 90 days of cross-examination. Chris Tollefson spent 26 hours cross-examining Enbridge witnesses as legal counsel for Nature Canada and BC Nature — groups he’s also representing during the Kinder Morgan review.

“It’s a radical change. It’s a fundamental change,” Tollefson told DeSmog Canada about the Trans Mountain review. “I’m not sure what’s left of the hearing process to the Trans Mountain hearing. The exchange of the written questions and answers is the prelude to the main event, but now there’s no main event.”

He added: “In any process where you’re trying to get at the truth, trying to test the evidence, it’s absolutely essential that you be able to pose questions to live witnesses who are under oath and who are required to answer the questions.”

Cross-examination crucial during Enbridge Northern Gateway hearings

Tollefson said that during the Enbridge hearings, cross-examination highlighted some of the most contentious issues, which were ultimately used to challenge the panel’s ruling in the federal court of appeal. He suspects the panel reviewing Kinder Morgan’s Trans Mountain proposal will be called upon to revisit this decision.

“If they don’t, the concern is that the evidence that they’re going to be relying on to make their recommendation will have not have been properly tested,” he said. “I think it cuts both ways, because not only is the proponent’s evidence not being put to the test, but neither is the evidence of any other party. The panel, in my view, is going to be hampered in doing its job.”

Tollefson said in a process restricted to written answers, it’s very easy to avoid directly and completely answering questions.

Timeline condensed by federal government

The Trans Mountain review has been condensed after the federal government’s 2012 budget bill overhauled environmental assessments and put a new 18-month timeline on reviews conducted by the National Energy Board.

“It has been put under a completely unrealistic timeline,” Tollefson said.

Burnaby Mayor Derek Corrigan has said he would be willing to stand in front of a bulldozer to stop Kinder Morgan’s project from going ahead.

“I’m prepared to fight this up until the bitter end,” he told Global News. “I’m incensed over the way we’ve been treated.”

On Saturday, hundreds of citizens rallied against the project in Burnaby, B.C.’s third largest city and the site of Kinder Morgan’s oil storage tanks and at least two major Kinder Morgan oil spills.

Community information sessions on the project have turned into rallying cries, with city officials frustrated with the NEB process.

“What we really need to do is let the government know that no public hearings is not an acceptable approach to this matter,” McDade said at last week’s information session.

Photo: Caffeinehit via Flickr

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Not even a month has passed since the federally appointed Joint Review Panel (JRP) released its official report recommending approval of the Northern Gateway pipeline, pending the fulfillment of 209 conditions. Yet already two separate suits have been filed against the integrity of the report, with groups requesting cabinet delay a final decision on the pipeline project until the federal court of appeals can assess the complaints.

One of the suits, filed today by the Environmental Law Centre on behalf of B.C. Nature (the Federation of British Columbia Naturalists), requested the panel’s report be declared invalid and that cabinet halt its decision on the pipeline project until the court challenge is heard. The second suit, filed by Ecojustice on behalf of several environmental groups claims the panel's report is based on insufficient evidence and therefore fails to constitute a full environmental assessment under the law.

Chris Tollefson, B.C. Nature’s lawyer and executive director of the Environmental Law Centre at the University of Victoria, says “we have asked that the federal court make an order that no further steps be taken by any federal regulator or by Cabinet until this request is adjudicated.”

“We’re confident that the federal court will make that order because we’ve raised some serious issues with the legality of the report and if the report is flawed then it can’t go to cabinet, and it shouldn’t go to cabinet,” he said.

B.C. Nature has identified almost a dozen legal errors that bring the legitimacy of the panel’s recommendation into question.

“The two [errors] that we think are the most serious among those are the finding with respect to justification of serious harm to caribou and grizzly and the ruling with respect to a potential major oil spill and its consequences. We say that in both of those areas there is a glaring error that’s occurred that has to be addressed by the federal court of appeal,” Tollefson said.

A federal recovery strategy for humpack whales on the B.C. coast released in October cited potential increased oil tanker traffic as a danger to dwindling populations. The recovery strategy, released after a five-year delay, also noted the danger toxic spills posed to critical habitat. 

A federal caribou recovery strategy is expected by the end of the month.

“Both those federal strategies have to be considered by the cabinet when it ultimately rules on this [project]… For caribou this pipeline has some serious consequences and it will be interesting to see what happens when the federal strategy comes down.”

For Tollefson, the inadequacy of the official JRP report points to a failure of the Northern Gateway hearing process.

“It’s disappointing for everybody involved on the intervenor side, how this has unfolded. The report is not only legally flawed in relation to the specific issues that we’ve raised but I think there’s a more general flaw, which is that it’s failed the test of transparency, it fails test of intelligibility. It basically doesn’t grapple with the evidence,” he said.

The report reaches its conclusions “without setting out its analysis,” Tollefson says, “without discussing the evidence that forms the basis for those conclusions.”

“So we think there’s a basic rule of law issue here: does this report even conform with the basic requirements in terms of intelligibility and transparency that we expect from tribunals?”

“And we say that it doesn’t.”

Tollefson anticipates that the request will delay cabinet’s 180-day decision period, saying it would be “very difficult” for cabinet to address and respond to B.C. Nature’s complaints within that timeframe.

For Tollefson a delay in cabinet’s decision isn’t only foreseeable, it’s appropriate.

“Cabinet after all has to make its decision based upon the findings and the recommendations that arise out of this report.” Without a reliable report, what kind of decision can British Columbians expect?

The errors in the report could send the federal panel back to the drawing board.

“If we’re upheld on any of our arguments, that report will have to be sent back to the JRP, redone, and we’ll basically be starting, potentially, back where we were in June. In those circumstances, it makes little sense for cabinet to make a decision given that level of uncertainty around the future of the report.”

Image Credit: Mike Baird via flickr

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