Canada's National Energy Board (NEB) announced today that it is stopping the clock on the review of Kinder Morgan’s Trans Mountain oil pipeline expansion due to the company’s new proposed corridor through Burnaby, B.C. — which will push a decision on the project back to after the 2015 federal election.

The board will take a seven-month timeout from its 15-month timeline between July 11, 2014, and Februrary 3, 2015, to allow Kinder Morgan time to file studies for its new corridor through Burnaby Mountain, according to a letter to intervenors sent today.

That pushes the board’s deadline to file its report on the project with cabinet back seven months from July 2, 2015, to Jan. 25, 2016.

“The significant thing is that this decision now won’t be made until after the next federal election. It’ll be up to the next Prime Minister to make that call,” says Karen Campbell, staff lawyer with Ecojustice.

“From a campaign perspective, it certainly gives some wind in the sails of those who want to make sure this isn’t a fait accompli before the next election,” she says.

But Campbell also cautioned that there are still a lot of shortcomings in the process that the energy board has not addressed.  

That’s a concern echoed by Gregory McDade, legal counsel for the City of Burnaby.

“There are so many other incomplete items that need work,” McDade says. “We’ve been pushing all along for a proper public hearing with cross-examination and evidence and the NEB said they couldn’t do that because of the tight timeline. Now that we have the time, why aren’t we doing a proper public hearing?”

McDade says that without cross-examination, the energy board’s review is not legitimate. He noted how Kinder Morgan failed to answer many of the questions put to them through the “information request” process, which he described as a “colossal joke.”

“Stalling it seven months doesn’t help at all if you’re not going to properly examine the evidence,” he said. “It just puts the decision off.”

Chris Tollefson, executive director of the Environmental Law Centre at the University of Victoria, says this ruling is just a small step toward fixing the problem and that the entire process needs to be put on hold until Kinder Morgan’s application is complete.

As of right now, the rest of the hearings are scheduled to move forward more or less as per the previous schedule.

“The board has now recognized that this process was not working and that the timelines were unrealistic,” Tollefson says. “What we would call upon the board now to do is to revisit its decision to eliminate cross-examination from this process.”

Any which way, the Conservatives will be in the limelight over their support for heavy oil projects on B.C.'s coast in the 2015 election, according to Kai Nagata, energy and democracy director at Dogwood Initiative, a B.C. democracy group.

"It'll be a live issue for sure," Nagata says. "The way Kinder Morgan is going, the more time the NEB gives them to alienate landowners and First Nations, the more likely they are to remind people of Enbridge."

Kinder Morgan’s proposed expansion would ship 590,000 barrels of oilsands bitumen to Burnaby each day, where it would be loaded onto 400 oil tankers each year.

— With files from Carol Linnitt

Photo: Rod Raglin via Flickr

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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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