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 sincerelyAndrew Weaver MLA, Oak Bay-Gordon Head
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,Andrew Weaver MLA, Oak Bay-Gordon Head
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:Re: Trans Mountain Pipeline ULC Application for the Trans Mountain Expansion Project Hearing Order OH-001-2014 Board File OF-Fac-Oil-T260-2013-03 02 Response to the Notice of Motion by Living Oceans Society & Raincoast Conservation Foundation dated April 17, 2014 Response to the Notice of Motion by R. Allan dated April 14, 2014
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:
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.
In conclusion, I submit that I support both of the abovementioned motions and respectfully request that the Board amend the Hearing Order to:
MLA, Oak Bay-Gordon Head