Pipelines

Media Statement: May 12, 2014
Details Needed on Spill Response, Scientific Data and Consultation from Kinder Morgan
For Immediate Release

Victoria B.C. – The deadline for intervenors to submit initial questions and information requests to the National Energy Board on the proposed Kinder Morgan – Trans Mountain pipeline project passed at noon (pacific time) today. The office of Andrew Weaver has submitted close to 500 questions for this phase of the hearing process, concentrating on the science surrounding the risk and likely impact of an oil spill, Kinder Morgan’s ability to respond and cleanup a spill, and the consultation that was done with affected island coastal communities.

Andrew Weaver is participating as an intervenor in the N.E.B. as the elected representative of the riding of Oak Bay – Gordon Head, a community that will be directly affected should a spill occur on the oil tanker route.

“I am very concerned about the evidence used to justify Kinder Morgan’s assertion that it can deal with a heavy oil spill. As we saw with the Northern Gateway hearings there simply has not been adequate research on how heavy oil behaves in a marine environment, or if it is even possible to clean it up” said Andrew Weaver “We have submitted detailed questions to the company and I trust they will respond with comprehensive answers”

The N.E.B. hearings on the Kinder Morgan pipeline expansion continue into 2015 with a final report anticipated next summer. Unlike the Northern Gateway hearings no oral cross examination of the company or experts is provided, only written questions and responses are allowed.

To see the questions submitted to the National Energy Board click here:

Media Contact
Mat Wright – Press Secretary, Andrew Weaver MLA
mat.wright@leg.bc.ca
1 250 216 3382

Media Statement, May 8^th 2014
Andrew Weaver calls on government to protect credibility of its 5 conditions for Heavy Oil Pipelines

For immediate release

Victoria, B.C. – Andrew Weaver, MLA for Oak Bay – Gordon Head and Deputy Leader of the B.C. Green Party, calls on the B.C. government to explain its silence on the National Energy Board’s Kinder Morgan – Trans Mountain pipeline hearing process, as local governments and other intervenors raise strong concerns about a defective process.

The government missed an important opportunity to weigh in on a key motion, that called on the National Energy Board to introduce oral cross-examination into the hearing process.

Oral cross-examination played a critical role in the Joint Review Panel hearings on the proposed Northern Gateway Pipeline. The cross-examination period lasted more than 90 days with the Province itself requesting over 8 hours of that time. It was essential in assessing the extent to which the project met the B.C. Government’s 5 conditions, and helped uncover serious gaps in Enbridge’s evidence ultimately leading the province to conclude that it could not support the project at that time.

However, oral cross-examination has been replaced in the current Trans Mountain hearing process, with only two opportunities to submit written questions. First Nations groups, cities including Victoria, Vancouver and Burnaby, and many other intervenors have raised significant concerns about the ability to adequately assess Trans Mountain’s evidence. This concern is amplified by the short timeline that gives intervenors little more than one month to read the 15,000 page application and submit their first round of questions.

This precedent-setting change comes along with a federally legislated timeline that shortens the length of the Kinder Morgan hearing process and all future hearings. However, the need to ensure fairness must remain paramount and at least one intervenor–Elizabeth May, Member of Parliament for Saanich-Gulf Islands and Leader of the Green Party of Canada–is considering legal action over the removal of oral cross-examination.

“The final argument that the government prepared at the conclusion of the Joint Review Panel hearings on the proposed Northern Gateway Pipeline was a substantial and articulate document that relied heavily on oral cross-examination to make the case for why the Province was unable to support that proposal at this time. The fact that the government has remained silent on the absence of oral cross-examination in the Trans Mountain hearings, raises significant concerns, and is putting the credibility of its 5 conditions at risk.” said Andrew Weaver.

Background Documents:

Backgrounder 2 – NEB Ruling Notices of motion to include cross-examination of witnesses – Trans Mountain Project

Backgrounder 1 – Comparison of NGP and TMP

Media Contact:
Mat Wright – Press Secretary Andrew Weaver MLA
mat.wright@leg.bc.ca
1-250-216-3382

The Hansard transcript of the Question Period interaction is reproduced below.

A. Weaver: On April 14 Robyn Allan, one of 400 interveners in the Kinder Morgan hearings, submitted a motion asking the National Energy Board to introduce oral cross-examination into the process.

I joined many other interveners in writing a letter of support for Robyn Allan’s motion, as I felt this was the best way to formally express the importance of such cross-examination.

Madame Speaker, the government had ten days to submit their own letter of support, but they didn’t. A letter from the province would have had a profound influence on the NEB. Yesterday the NEB ruled on Robyn Allan’s motion and a similar motion tabled by MP Elizabeth May, dismissing their requests for oral cross-examination.

My question is to the Minister of Environment: given the government’s own comments that oral cross-examination of Enbridge was an essential part of determining whether or not the project met their five conditions, why did the government not take this opportunity to stand up for British Columbians and formally request oral cross-examination in the NEB hearing process?

Hon. M. Polak: I thank the member for his question and thank you for alerting me to his interest in the matter.

With respect to the National Energy Board hearings, I know the member is aware that they are a body that designs its own standard for how those hearings occur that we as a province do not influence.

Nevertheless, to the member’s question, the oral cross-examination, direct cross-examination, is not the only way in which one can put forward a case. In fact, there are still opportunities for participants to ask questions of Kinder Morgan and present their own information and perspectives to the panel. Interveners have the option to file detailed written information requests that Kinder Morgan is obliged to respond to — and in fact, in writing.

Also, interveners have the ability to address the review panel in person and to make their arguments and file written evidence.

With that knowledge, Madame Speaker, we determined that the opportunities were still sufficient for us to provide as strong an argument for our five conditions around Kinder Morgan as we did in the northern gateway hearings.

A. Weaver: Thank you to the minister, through you, Madame Speaker, for the response.

Oral cross-examination was essential to assessing the extent to which the project met the government’s five conditions. It uncovered serious gaps in Enbridge’s evidence and led the province to conclude that it could not support the project.

For the Kinder Morgan pipeline expansion project, oral cross-examination has been removed by the NEB. On April 23, I submitted an open letter to the Premier asking her to consider formally calling on the National Energy Board to introduce oral cross-examination. Two days ago I received a response that stated the following: “The province will use every forum available to ensure that the five conditions are met.”

I respect that response. However, my question to the minister is this: does the government believe that two written requests are sufficient to assess the meeting of the proposal with its five conditions? And if not, what other forums is the government using to ensure that it will receive sufficient information to assess its five conditions?

Hon. M. Polak: Again, I thank the member for the question. He will no doubt be aware that the province has not only committed to participating in the process, but we’ve actually been making our preparations to participate for months now as we approach the deadlines for submission.

For us, we still believe that with respect to our ability as interveners to request information in writing from Kinder Morgan…. We believe that we can do that in a detailed way that will provide us the information to evaluate. We also believe that we can provide to the panel, in person, an effective argument on behalf of our five conditions.

But it’s also important to note that the passage through the NEB process successfully is only one condition for us as a province. If we are not provided with sufficient evidence — not just commitments, but sufficient evidence — from the hearings, we certainly will maintain a position that upholds our five conditions.

We have seen that at the end of the northern gateway hearings when we concluded with a submission that, in fact, presented a lack of support from British Columbia. We will take the same approach here, entering neutral if we’re not provided with sufficient evidence, we will take the same approach.

The National Energy Board panel on the Kinder Morgan Trans Mountain pipeline hearings has extended the deadline on initial questions from intervenors to May 12^th. As the only British Columbia MLA with intervenor status in this process, Andrew Weaver is seeking questions and comments from constituents and people around the province to frame submissions to the hearings.

This is part of public engagement on the Kinder Morgan pipeline proposal, and on concerns raised by people around British Columbia on diluted bitumen, pipelines and increased tanker traffic. During the hearing process, which will conclude with a report and recommendations from the NEB panel in July 2015, Andrew Weaver will be providing on going opportunities for public input, along with regular updates. These will include a future town hall, forums, speaking engagements and newsletters.

A dedicated website section has been created on the proposed pipeline with project information, news and a feedback form for public questions and comments.

“Over the coming months I will be offering several ways people can submit questions, comments and concerns. It will start with this website and will continue through town halls and other forums. With the first deadline for questions to Kinder Morgan fast approaching I am inviting everyone to submit feedback by visiting our website. The feedback will be essential and valuable in my submissions to the National Energy Board.” Said Andrew Weaver

For further information please contact

Mat Wright – Press Secretary, Andrew Weaver MLA
mat.wright@leg.bc.ca
1 250 216 3382

Last week Adam Olsen, Interim Leader of the BC Green Party, Elizabeth May, Leader of the Green Party of Canada, and I held a press conference where we called on the BC Government and other intervenors in the Kinder Morgan pipeline hearings to join us in demanding oral cross examinations be included in the process. Today I followed up by formally submitting three open letters to Premier Clark, Kinder Morgan Canada and the National Energy Board.

In my letter to the Premier I ask that she consider using her government’s intervenor status to call on the National Energy Board to introduce a full oral cross-examination process into the Trans Mountain hearings. The text of the letter appears below.

An Open Letter to Premier Clark regarding the NEB Trans Mountain Hearing Process

Dear Premier Clark:

I am writing to you with respect to the Trans Mountain Expansion Project application Hearing Order published by the National Energy Board on April 2, 2014.

You and your government have taken the principled position that for any heavy oil pipeline to receive provincial government support, it must satisfy your government’s five conditions. I support the government on taking this principled approach to protect the interests of British Columbians.

As an intervenor in the National Energy Board’s Joint Review Panel hearings on the proposed Northern Gateway pipeline, the Province stood up for British Columbians by thoroughly cross-examining Northern Gateway’s proponents and analyzing their evidence. The cross-examination process was an essential part of assessing the extent to which the project met your government’s five conditions. It uncovered serious gaps in Enbridge’s evidence for the Northern Gateway pipeline proposal, including evidence surrounding what would happen in the event of an oil spill.

The Province of British Columbia’s final argument on the Northern Gateway pipeline was heavily reliant on evidence that only came out during the oral cross-examination process. This allowed the province to credibly and transparently assess the available evidence and to come to the conclusion that it was “unable to support the project at this time”. I commend the province and your government for the work it did during the Northern Gateway hearing process.

As an intervenor in the National Energy Board hearings on Kinder Morgan’s proposed Trans Mountain Expansion Project, the Province will be assessing a pipeline that will affect millions of British Columbians. The Trans Mountain pipeline would terminate in Burnaby with tankers leaving daily through Port Metro Vancouver. An oil spill, in the port or along the coast, would be devastating to the region.

The risks of this project necessitate thorough examination, as was done for the Northern Gateway Pipeline. They also necessitate a public analysis of the extent to which the pipeline meets your government’s five conditions. Oral cross-examination is the only opportunity available in a hearing process to adequately meet both of these needs.

Yet, the National Energy Board has removed oral cross-examination from the hearing process. In doing so, it has removed the best opportunity British Columbians have to get the real facts—and to understand the real risks—associated with this pipeline.

I believe this is a critical moment for the BC Government to assert its right to request a process that ensures that the interests of British Columbians are fully represented. Without oral cross-examination, the government has little ability to credibly and transparently represent the best interests of British Columbians in this process.

I therefore ask that you please consider using your Government’s status as an intervenor in the hearings, to call on the National Energy Board to introduce a full oral cross-examination process into the Trans Mountain hearings.

Thank you for taking the time to consider this request. I trust you will respond in a timely manner, given the constraints that are placed on the hearing process.

Yours sincerely

The second open letter was directed to the President of Kinder Morgan Canada. In it I appeal to their stated commitment to earning the trust of British Columbians by asking them to call on the National Energy Board to introduce oral cross-examination into the hearing process. I point out that without full and transparent review of all of the evidence, an inherent distrust is injected into the hearing process, and that full and transparent review starts with open and transparent cross-examination. The full text of the letter is detailed below.

An Open Letter to Kinder Morgan Canada regarding the NEB Trans Mountain Hearing Process

Dear Mr. Anderson,

I am writing to you with respect to the Trans Mountain Pipeline application Hearing Order published by the National Energy Board on April 2, 2014.

In submitting your Trans Mountain Pipeline Expansion proposal for review by the National Energy Board, you made it clear that Kinder Morgan understands that its success is tied to earning the “trust, respect and cooperation” of British Columbians.

As you know, over 2000 British Columbians applied to the National Energy Board (NEB) to participate in the hearing process. Only about 400 applicants were granted intervenor status, leaving many feeling disenfranchised and left out of the hearing process.

Unfortunately, in its Hearing Order, the NEB has chosen to exclude oral cross-examination from the hearing process. Without oral cross-examination, British Columbians have lost their single most important opportunity to get the information they need to give your project a full and fair consideration.

The fact is, the success of your proposal will obviously remain contingent on British Columbians granting you a social license to proceed. Yet, without oral cross-examination, it is difficult to see how this will ever be possible as it appears the process is overly restrictive from the start.

The Northern Gateway pipeline experience made it clear that ‘trust us’ isn’t good enough to gain a social license. Without full and transparent review of all of the evidence, an inherent distrust is injected into the hearing process. Full and transparent review starts with open and transparent cross-examination.

I recognize that the decision to include, or exclude, oral cross-examination from the hearing process is not ultimately yours to make. Nevertheless, as the proponent of the project, you are a key player. I am therefore asking you, to please consider demonstrating your commitment to earning the trust of British Columbians by calling on the National Energy Board to introduce oral cross-examination into the hearing process.

Yours sincerely,

The final letter was sent to the National Energy Board. In it I formally provide my support for two motions that have been brought forward. The first was submitted by Living Oceans Society and Raincoast Conservation Foundation asking for an extension of the timeline for Intervenor Round 1 information requests by 45 days to June 16, 2014. The second  was submitted by Robyn Allan asking that  oral cross-examination be included in the hearing process. The full text of my letter is also provided below.

Attention: Ms. Sheri Young, Board Secretary

Dear Ms. Young:

I am writing as an intervenor in the National Energy Board Hearings on the Trans Mountain Expansion Project Application to express my support for the following two Notices of Motion:

1. The Notice of Motion submitted by Living Oceans Society and Raincoast Conservation Foundation dated April 17, 2014, specifically as it pertains to extending the timeline for Intervenor Round 1 information requests by 45 days to June 16, 2014.
2. The Notice of Motion submitted by Robyn Allan dated April 14, 2014, to include an oral cross-examination phase in the hearing process.

Extending the timeline for Intervenor Round 1 Information Requests

As the MLA for Oak Bay-Gordon Head, I applied to participate as an intervenor in the National Energy Board hearings on the Trans Mountain Expansion Project because I believe my constituents—and, indeed, all British Columbians—deserve a voice in the hearing process. I am deeply concerned that the restrictive timeline offered by the NEB on intervenor participation will severely impede my ability to effectively represent my constituents in this process. In particular, I have two specific concerns:

Firstly, as an elected representative, I have a duty to engage with my constituents so that I can effectively represent them. At 15,000 pages, Trans Mountain’s application is highly complex and intricate. Like me, my constituents need time to fully review the application prior to offering their feedback to me through an active engagement process. Many of my constituents own land along the coast, while others frequent public beaches or rely on coastal industries. All would be affected in the event of an oil spill and hence their participation and their voices are important as we move through this process.

Secondly, as an intervenor, and in the absence of an oral cross-examination process, I effectively only have two opportunities to ask written questions of the proponent. In the Hearing Order, the National Energy Board notes that it is in intervenors’ best interests to submit the full scope of their information requests in the first round, so the second round can be used for clarification and supplemental questions. This recommendation is made, of course, because there is no further opportunity for direct clarification or supplemental questions on Information Requests submitted during the second round. In other words, I cannot directly ask follow-up questions of the proponent on any key points that I miss during the first round due to the rushed process.

Effective participation in the hearing process therefore requires that I review the entire application in detail, such that I can submit the full scope of my information requests in the first round. I submit that one month is not a sufficient amount of time for me to fully and thoroughly review the proponent’s application and prepare my information requests. Add to this the importance of consulting with my constituents, and I submit that my ability to effectively participate in the hearing process is severely constrained under the current timeline.

With this in mind, and with full appreciation of the 15-month timeline for the hearing process, I strongly support the motion to postpone the deadline for Intervenor Round 1 information requests by 45 days to June 16, 2014.

Oral Cross Examination

I would also like to take this opportunity to voice my complete support of the motion tabled by Robyn Allan, which called for the Hearing Order to include an oral cross-examination phase available to all intervenors.

I applied as an intervenor twice, once in my capacity as an MLA to represent the citizens in my region who would be affected by this pipeline, and a second time as a scientist with applicable knowledge in the area of physical oceanography. I understood it was my right, were I to be accepted as an intervenor, to orally cross-examine witnesses, to inquire into areas of concern for members of my community, and to adjudicate the scientific evidence that was put before the panel. This belief was shared by many, if not most, who applied as intervenors for this process.

There is considerable public interest in this hearing, as is reflected by the quantity and diversity of people and groups who applied to participate in the process. British Columbians are watching this process closely, looking for any bias to show itself. Failing to include oral cross-examination will be interpreted as a clear sign that this process is designed to limit the influence that citizens can have on its outcome. The issue of citizen involvement is of particular concern given that intervenors in the Trans Mountain Expansion Toll Application, who primarily came from the oil industry, were granted the opportunity to orally cross-examine witnesses.

There is a great risk here that people will ultimately determine that this hearing process itself cannot be supported, and that any decision reached by the panel was done so contrary to established democratic practice. This will negatively affect the prospects of the Trans Mountain project and will preclude the proponent from developing the required social license to proceed.

As with most major industrial projects currently being debated in British Columbia, achieving a social license is what will ultimately allow a project to advance. This requires a demonstration of good faith consultation, and a process that allows an open and transparent analysis of the evidence on which a project is based. Without an oral cross examination component, the Trans Mountain Expansion Project will fail to meet this standard.

Conclusion

In conclusion, I submit that I support both of the abovementioned motions and respectfully request that the Board amend the Hearing Order to:

1. Extend the deadline for Intervenor Round 1 information requests by 45 days, to June 16, 2014.
2. Include a significant oral cross-examination component, open to all intervenors, in the hearing process.

Best wishes,

Andrew Weaver
MLA, Oak Bay-Gordon Head

At a press conference held today, Andrew Weaver, Elizabeth May and Adam Olsen called on the BC Government and other intervenors in the Kinder Morgan pipeline hearings to join them in demanding oral cross examinations be included in the process. The full statement is below the video.

Media Statement April 17, 2014
Calling on Government to Stand Up for BC on Kinder Morgan Pipeline
For Immediate Release

Andrew Weaver, Deputy Leader of the BC Green Party and MLA for Oak Bay-Gordon Head, Elizabeth May, Leader of the Green Party of Canada and MP for Saanich-Gulf Islands, and Adam Olsen, Interim Leader of the BC Green Party, are calling on the BC Government and Kinder Morgan to request that the National Energy Board introduce cross-examination into the hearing process for the Trans Mountain Pipeline Expansion.

Trans Mountain, a wholly-owned subsidiary of Kinder Morgan, is applying to triple the capacity of its Trans Mountain Pipeline to 890,000 barrels a day. The pipeline transports heavy oil from Alberta to Burnaby for transport by tanker. The expansion
would see a drastic increase in the number of heavy oil tankers on the BC coast. Andrew Weaver, Elizabeth May and Adam Olsen have successfully been granted intervenor status in the hearing process.

“I applied for intervenor status so I could stand up for my constituents and offer them a voice in the process,” says Andrew Weaver. “Like others, I applied under the expectation that intervenors would have the right to cross-examine the proponent during the oral hearing process.”

Cross-examination was an essential part of uncovering serious gaps in Enbridge’s evidence for the Northern Gateway pipeline proposal, including evidence surrounding what would happen in the event of an oil spill. The Province of British Columbia’s final argument on the Northern Gateway pipeline was heavily reliant on evidence that only came out during the oral cross-examination process. This allowed the Government to credibly and transparently assess the available evidence and come to the conclusion that they “were unable to support the project at this time”. In contrast, the Trans Mountain Pipeline hearings currently do not include any oral cross-examination and only offer intervenors two written opportunities to directly ask Trans Mountain for information about its evidence.

“This is a watershed moment for the BC government’s claim that it will stand up for British Columbians,” says Andrew Weaver. “Without oral cross-examination, the government has little ability to credibly and transparently represent the best interests of British Columbians in this process. I am therefore asking the BC Government to call on the National Energy Board to introduce a full oral cross examination into the hearing process.”

“Having appeared as legal counsel before the National Energy Board over the last 30 years, the right to cross-examine before the National Energy Board has been unquestioned,” says Elizabeth May. “The truncated process imposed due to the 2012
omnibus budget bill is bad enough, these additional changes represent a breach of natural justice and if not corrected will end up before the courts.”

“Without oral cross-examination, Kinder Morgan essentially gets to say ‘trust us’,” says Adam Olsen. “British Columbians made it clear with the Northern Gateway pipeline that ‘trust us’ isn’t good enough. We want a full and transparent review of
all of the facts, and that requires oral cross-examination. If Kinder Morgan has nothing to hide, then there should be no problem with them supporting a full oral cross examination in the hearings.”

Media Contact:
Mat Wright – Press Secretary, Andrew Weaver MLA
(1) 250 216 3382
mat.wright@leg.bc.ca