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 2 "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."
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."
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: Jennifer Castro via Flickr.
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