Final Hearings Under Way for Northern Gateway Pipeline Project

Final hearings continue this month for the federal review of a major pipeline project being proposed for northern Alberta and British Columbia.

Enbridge’s Northern Gateway Pipelines Limited Partnership (“NGP”) is proposing to build twin pipelines from north of Edmonton, Alberta to Kitimat, B.C. The pipeline flowing west will transport oil from Alberta’s oil sands to British Columbia’s north coast, carrying between 400 and 1 million barrels of oil per day. The pipeline flowing east will transport condensate, a lighter petroleum product used to dilute oil to make it flow, from the coast to northern Alberta and will carry an average of 193,000 barrels of condensate per day. Both pipelines will stretch approximately 1,172 km in length.

NGP also proposes to construct a major marine terminal near Kitimat for loading and unloading oil and condensate tankers. The marine terminal will have two mooring berths as well as fourteen storage tanks for oil and condensate.

If NGP’s project is approved, approximately 225 oil and condensate-laden tankers will travel the waters off the coast of B.C. every year and inland to Kitimat via the Douglas Channel. This will include tankers known as very large crude carriers (VLCCs) which have a capacity of 2 million barrels of oil or more each. Each of these VLCC ships is about 350 metres long – the length of 3.5 football fields– and 60 metres wide.

The project is currently undergoing a federal review process. NGP filed its formal project application to the National Energy Board on May 27, 2010, triggering an environmental assessment by the Canadian Environmental Assessment Agency (“CEAA”). NGP also requires a certificate of Public Convenience and Necessity from the National Energy Board (“NEB”).

In order to review the project, CEAA and the NEB have created a Joint Review Panel (“JRP”).

The JRP consists of three panel members, who preside at the hearings. At the end of the process, the JRP will release an environmental assessment report and make recommendations to the federal Cabinet on whether a Certificate of Public Convenience and Necessity should be issued.

Although well underway, the process for reviewing NGP’s project was recently changed by the federal government. Originally, the JRP had the power under the National Energy Board Act (“NEBA”) to say “no” to the project as a final decision maker. Under recent amendments to NEBA under the Budget Implementation Act, however, the JRP no longer has decision-making power – it can now only make recommendations to Cabinet. This means that the final decision of whether the project should be approved now lies with the federal Cabinet.

The Panel’s review is a quasi-judicial process, with written evidence and expert reports, oral testimony, cross-examinations, information requests and legal argument. The issues to be considered by the JRP include economic considerations, environmental impacts from project operations, impacts from an oil spill resulting from accidents or malfunctions, and impacts to Aboriginal title and rights.

Over 200 intervenors are involved in the JRP process. In December 2011, thousands of pages of written evidence were filed by intervenors on the JRP’s electronic registry. The number of documents on the registry now exceeds ten thousand.

Numerous rounds of written information requests were also completed as part of the JRP’s review of the project. This process, which is similar to written interrogatories, allowed the parties to ask questions of NGP about the project, and also allowed NGP to question intervenors on the evidence they filed.

Last spring, community hearings took place in seventeen communities along the proposed pipeline and tanker routes. In addition, more than 4,000 people registered to speak to the JRP for up to 10 minutes about their concerns for the project.

The questioning phase of the final hearings, where experts and representatives of NGP are being cross-examined, began in Edmonton on September 4, 2012. The hearings moved to Prince George on October 9, 2012 and will continue this month in Prince Rupert. The Edmonton hearings focused on the economic need for the project, while the Prince George and Prince Rupert hearings focused on issues related to the pipeline and to marine transportation, respectively. The final argument phase of the JRP’s review is scheduled for the spring of 2013.

Some of the most important issues being raised in the JRP process relate to the constitutionally-protected Aboriginal and treaty rights of First Nations, and the potential impacts of the proposed project on those rights. A number of First Nations have expressed serious concerns to the JRP about potential impacts to their rights from the project due to the pipeline, increased tanker traffic, and the risk of an oil spill that could devastate their traditional territories, waters and resources.  Aboriginal and treaty rights are recognized and protected under section 35 of the Constitution Act ,1982, which is part of the supreme law of Canada. These rights recognize that First Nations, Métis, and Inuit peoples occupied and used the lands and waters that now make up Canada, before non-Aboriginals came to this country. Courts have repeatedly emphasized the need for these rights to be respected and protected.

Due to the potential impacts on Aboriginal and treaty rights, the project triggers the government’s duty to consult with First Nations whose traditional territories would be impacted by the project. Constitutional protection of the Aboriginal and treaty rights of Canada’s Aboriginal peoples means that when an activity is proposed which has the potential to negatively impact those rights, government has a constitutional duty to consult and accommodate the affected Aboriginal groups.

The duty to consult requires government to engage in meaningful and good faith consultation with Aboriginal peoples regarding a proposed activity if the activity might negatively affect them, and to accommodate their concerns. Failure to meet the duty to consult in the context of other projects has resulted in successful legal challenges by First Nations.

Canada is taking the position that the JRP process will constitute part of the Crown’s consultation and has told Aboriginal groups that it intends to rely on the JRP process to the extent possible to assist in fulfilling its legal duty to consult. However, First Nations have raised concerns about Canada’s approach, and the lack of meaningful consultation that has occurred to date in relation to this proposed project.

Gitxaala First Nation is one of the parties involved in the JRP process. Gitxaala is a coastal First Nation concerned about the effects of the project on its Aboriginal rights and way of life.  Tankers from the NGP project would pass through the waters of Gitxaala’s traditional territory, in close proximity to Gitxaala’s community of Kitkatla, an island community approximately 45 km south west of Prince Rupert. Other Gitxaala members live in nearby north coast communities such as Prince Rupert and Port Edward.  Gitxaala has filed evidence with the JRP to suggest that for them, the risks and effects of tanker traffic and a marine oil spill outweigh any potential economic benefits. Gitxaala’s concerns about the Northern Gateway project relate to the potential impacts of the project on their rights and culture. In particular, Gitxaala is concerned that the tanker traffic and spill risks associated with the project would threaten the well-being of its communities and members, including their ability to harvest food in their traditional territory and their ability to pass on their culture to their children and grandchildren.

To date, Gitxaala has filed over 5,000 pages of written evidence with the JRP, including numerous expert reports, and a number of its members have testified in the hearing process. Gitxaala will be cross-examining NGP’s witnesses about marine transportation issues at the hearings in Prince Rupert this month.

Pursuant to other amendments brought into effect under the Budget Implementation Act, the JRP is required to issue its final recommendations on the Northern Gateway project by the end of 2013.