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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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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